public works protection act review...public works protection act the honourable r. roy mcmurtry,...
TRANSCRIPT
REPORT OF THE REVIEWOF THE
PUBLIC WORKS PROTECTION ACT
The Honourable R Roy McMurtry OC OOnt QC
April 2011
Submitted to the Honourable James J Bradley Minister of Community Safety and Correctional Services
REVIEW OF THE PUBLIC WORKS PROTECTION ACT
TABLE OF CONTENTS
Page
SECTION 1 INTRODUCTION 1
A Terms of Reference and Scope of Review 1
B Factual Background 1
SECTION 2 THE PUBLIC WORKS PROTECTION ACT 3
A History of the Public Works Protection Act 3
B Current Uses of the Public Works Protection Act 4
C Outline of the Public Works Protection Act 5
1 Discussion of Key Sections 7
(a) Definition of ldquoPublic Workrdquo 7
(b) Appointment and Powers of Guards and Peace Officers 8
(c) Boundaries of Public Work 9
(d) Offence Power of Arrest 9
(e) Regulations 9
D Events Leading to Passage of O Reg 23310 9
E O Reg 23310 13
F Information Given to Public Regarding Security Protocol 16
SECTION 3 COMMENTARY 18
A Public Policy Considerations 18
B Review of other Public Reports 20
1 Reports of the Canadian Civil Liberties Association 20
2 The Ontario Ombudsman Report 22
SECTION 4 POWERS OF THE POLICE 23
A Common Law Powers and Powers Pursuant to Police Services Acts 23
B Other Statutory Powers 26
1 Criminal Code 26
2 Trespass to Property Act 27
3 Foreign Missions and International Organizations Act 27
-i-
TABLE OF CONTENTS (continued)
Page
4 Emergency Legislation 30
C Gaps in Canadian Police Powers 31
SECTION 5 LEGAL ANALYSIS OF THE PUBLIC WORKS PROTECTION ACT 36
A Legal Analysis of the Legislation 36
B Other uses of the Public Works Protection Act 44
1 Court Security 45
2 Power Generating Infrastructures 48
SECTION 6 CONCLUSION 54
-ii-
SECTION 1 INTRODUCTION
A Terms of Reference and Scope of Review
In September 2010 I was retained by the Ministry of Community Safety and Correctional
Services to conduct a review of the Public Works Protection Act (the ldquoPWPArdquo)1
The Terms of Reference2 for this review provide that I am to identify areas of the PWPA
for reform and if appropriate make specific recommendations for amendment or repeal
(the ldquoReviewrdquo) As part of the process of conducting this Review I was requested to take
into account the historical context of the PWPA and examine its current uses I was also
requested to undertake discussions with key stakeholder groups and other interested
parties3 and to review other relevant reports
The focus of this Review as stated in the Terms of Reference is ldquoto develop a foundation
for future legislationrdquo
B Factual Background
On June 19 2008 Prime Minister Stephen Harper announced that Huntsville Ontario
would host the G8 Summit scheduled for June 25 - 26 2010
On December 7 2009 the Prime Minister announced that Toronto Ontario would host
the G20 Summit scheduled for June 26 - 27 2010 It was not until February 19 2010
that the specific site of the G20 Summit was announced to be the Metro Toronto
Convention Centre in downtown Toronto
1 RSO 1990 c P552 Attached as Appendix 1 is a copy of the Terms of Reference3 Attached as Appendix 2 is a list of all key stakeholder groups and interested parties with whom I met during the course of this Review
1
An Integrated Security Unit (ldquoISUrdquo) was established in 2008 to deal with the security
issues relevant to the G8 and later the G20 Memorandums of understanding entered into
between the Royal Canadian Mounted Police (ldquoRCMPrdquo) and its ISU partners for both
Summits detailed that the RCMP was to be responsible for protecting Internationally
Protected Persons (ldquoIPPsrdquo) as well as the defined ldquocontrolled access zonesrdquo and the other
partners were to be responsible depending on whether it was the G8 or G20 for the areas
immediately adjacent to the controlled access zones referred to as the ldquointerdiction
zonesrdquo For the G8 Summit the Ontario Provincial Police (ldquoOPPrdquo) was to be responsible
for the interdiction zone For the G20 Summit the Toronto Police Service (ldquoTPSrdquo) was
responsible for the interdiction zone
It was TPSrsquos concern regarding its legal authority to establish and secure the interdiction
zone for the G20 Summit which resulted in the use of the PWPA
The TPS requested that the Ontario Government enact a regulation pursuant to the
PWPA4 which would designate the interdiction zone as a ldquopublic workrdquo and thereby give
the TPS the powers granted by the PWPA The regulation enacted pursuant to the PWPA
O Reg 23310 and the exercise by the police of their powers provided by this legislation
triggered this Review
4 Attached as Appendix 3 is a copy of the May 12 2010 letter
2
SECTION 2 THE PUBLIC WORKS PROTECTION ACT
A History of the Public Works Protection Act
The PWPA was enacted in 1939 It in addition to other legislation was passed during an
emergency session of the Ontario Legislative Assembly in response to Canadarsquos entry
into World War II and was considered important in supporting the war effort Lieutenant
Governor Albert Matthews in his throne speech outlined the context in which the
legislation was being passed5
We meet today under circumstances of the utmost gravity The possibility of war in which we are now engaged was fully realized and debated by you at the last session when you passed unanimously a resolution calling in such event for the complete mobilization of all our resources
Legislation calculated to give effect to the determination then expressed will be immediately submitted to you You will be asked to pass measures designed to increase agricultural and industrial production and for the protection of our vital public works and services (emphasis added)
Reports of the legislative debates held in 19396 indicate that protecting the provincersquos
hydroelectric facilities from sabotage was of particular concern The Ontario Government
had asked the Federal Government to provide members of the Canadian military to guard
these works The Federal Government refused and the PWPA was the provincial
response Concerns about restriction on civil liberties were raised in relation to another
bill that would have required permits for the holding of public meetings in public places
however no such concerns were raised in relation to the PWPA The only constitutional
issue raised in debate regarding the PWPA related to whether the Federal Government
was responsible for providing the necessary guards to protect public works as opposed to
requiring provinces to establish ldquoprivate armiesrdquo
5 Ontario Speech of the Throne 20th Parl 4th Sess (19 September 1939)6 Attached as Appendix 4 is a copy of the reports of the legislative debates Note This is the best available copy
3
The PWPA has undergone only minor amendments since 1939 Shortly after it was
enacted two Orders in Council were passed designating areas around the Canadian
General Electric Company Limited and The Canadian Car and Foundry Company as
ldquopublic worksrdquo In 1950 a provision regarding the recovery of certain fines was deleted
In 1960 the provision regarding the appointment of guards was moved from near the end
of the PWPA to closer to the beginning In 1972 the PWPA was amended to reassign
certain responsibilities from the Attorney General to the Solicitor General It was
amended again in 1989 to increase the fine for an offence under the PWPA from $100 to
$500 There have also been some other minor changes of wording since 1939
B Current Uses of the Public Works Protection Act
Although there is legislation in other provinces that defines ldquopublic worksrdquo for other
purposes there is no jurisdiction in Canada which has legislation similar in nature to the
PWPA
As the PWPA was enacted in 1939 as an emergency wartime statute it is perhaps not
surprising that it is relied upon today in only limited circumstances Prior to the G20 the
PWPA had only been relied upon to conduct searches at courthouses in the context of
providing courthouse security This use of the PWPA was upheld by the courts7 In
addition since September 2001 the PWPA has been used by Ontario Power Generation
(ldquoOPGrdquo) to empower its guards to secure its nuclear and non-nuclear power generating
facilities
7 See for example R v Campanella [2002] OJ No 5104 (SCJ) affrsquod [2005] OJ No 1345 (CA) and R v SS [2005] OJ No 5002 (SCJ)
4
C Outline of the Public Works Protection Act
Given the fact that the PWPA is a short statute I am reproducing it here in its entirety for
ease of reference
The Public Works Protection Act
Definitions 1 In this Act
ldquoguardrdquo means a guard appointed under this Act (ldquogardienrdquo)
ldquohighwayrdquo means a common or public highway or a part thereof and includes any street bridge and any other structure incidental thereto and any part thereof (ldquovoie publiquerdquo)
ldquopublic workrdquo includes
(a) any railway canal highway bridge power works including all property used for the generation transformation transmission distribution or supply of hydraulic or electrical power gas works water works public utility or other work owned operated or carried on by the Government of Ontario or by any board or commission thereof or by any municipal corporation public utility commission or by private enterprises
(b) any provincial and any municipal public building and (c) any other building place or work designated a public work by the Lieutenant
Governor in Council (ldquoouvrage publicrdquo) RSO 1990 c P55 s 1
Guards appointment 2(1)For the purpose of protecting a public work guards may be appointed by (a) the Solicitor General
(b) the Commissioner of the Ontario Provincial Police Force (c) any inspector of the Ontario Provincial Police Force
(d) the head or deputy head of the municipal council or the chief of police of the municipality in which the public work is located or the person acting in the place or stead of the head or deputy head
(e) the chair or other person who is the head of a board commission or other body owning or having charge of the public work or the person acting in the place or stead of the chair or other person
Powers of guard (2)Every person appointed as a guard under this section has for the purposes of this
Act the powers of a peace officer
5
Duties of guard (3)Subject to the regulations and to any special direction of the Solicitor General or
the Commissioner of the Ontario Provincial Police Force every guard shall obey all directions of the person appointing him or her any inspector of the Ontario Provincial Police Force the chief of police of the municipality in which is located the public work that he or she is protecting and the person who is in charge of the protecting of the public work
Breach of duty of guard (4)Every guard who (a) neglects or refuses to obey a direction that he or she is required to obey under
subsection (3) (b) fails in any manner to carry out his or her duties as guard
(c) leaves the location to which he or she is assigned as guard or ceases to act as guard without leave of any of the persons mentioned in subsection (3) or
(d) otherwise conducts himself or herself in a manner not consistent with his or her duties as guard
is guilty of an offence and on conviction is liable to a fine of not more than $500 or to imprisonment for a term of not more than two months or to both RSO 1990 c P55 s 2
Powers of guard or peace officer 3A guard or peace officer (a) may require any person entering or attempting to enter any public work or any
approach thereto to furnish his or her name and address to identify himself or herself and to state the purpose for which he or she desires to enter the public work in writing or otherwise
(b) may search without warrant any person entering or attempting to enter a public work or a vehicle in the charge or under the control of any such person or which has recently been or is suspected of having been in the charge or under the control of any such person or in which any such person is a passenger and
(c) may refuse permission to any person to enter a public work and use such force as is necessary to prevent any such person from so entering RSO 1990 c P55 s 3
Statement under oath to be conclusive evidence 4For the purposes of this Act the statement under oath of an officer or employee
of the government board commission municipal or other corporation or other person owning operating or having control of a public work as to the boundaries of the public work is conclusive evidence thereof RSO 1990 c P55 s 4
Refusal to obey guard etc 5(1)Every person who neglects or refuses to comply with a request or direction
made under this Act by a guard or peace officer and every person found upon a public
6
work or any approach thereto without lawful authority the proof whereof lies on him or her is guilty of an offence and on conviction is liable to a fine of not more than $500 or to imprisonment for a term of not more than two months or to both
Arrest (2)A guard or peace officer may arrest without warrant any person who neglects
or refuses to comply with a request or direction of a guard or peace officer or who is found upon or attempting to enter a public work without lawful authority RSO 1990 c P55 s 5
Regulations 6The Lieutenant Governor in Council may make regulations
(a) providing for the organization co-ordination supervision discipline and control of guards
(b) defining the areas that constitute approaches to public works either generally or with regard to a particular public work
(c) respecting any matter necessary or advisable to carry out effectively the intent and purpose of this Act RSO 1990 c P55 s 6
1 Discussion of Key Sections
(a) Definition of ldquoPublic Workrdquo
Section 1 defines ldquopublic workrdquo very broadly There are at least three classes of public
works The first class includes certain transportation infrastructure (ldquorailway canal
highway bridgerdquo) energy infrastructure (ldquopower works including all property used for
the generation transformation transmission distribution or supply of hydraulic or
electrical power gas worksrdquo) other public utilities (ldquowater works public utilityrdquo) and
other ldquoworksrdquo generally (ldquoor other workrdquo) This first class of public works may be
publicly or privately owned (ldquoowned operated or carried on by the Government of
Ontario or by any board or commission thereof or by any municipal corporation public
utility commission or by private enterprisesrdquo)
The second class of defined ldquopublic worksrdquo includes all provincial and municipal
buildings ldquoPublic buildingrdquo is not defined It would appear to clearly include buildings
7
such as the Legislative Assembly courthouses and city halls and likely includes
provincially or municipally owned buildings used for governmental purposes It would
also seem to include provincially or municipally owned buildings used for other
purposes such as libraries for example
The third class of ldquopublic worksrdquo includes any other building place or work designated
as a public work by the Lieutenant Governor in Council The word ldquoplacerdquo would appear
to be a very broad term that could include a public park for example The area
designated by O Reg 23310 fell into this class of ldquopublic workrdquo
(b) Appointment and Powers of Guards and Peace Officers
Section 2 of the PWPA provides for the appointment of ldquoguardsrdquo the powers and duties
of peace officers and guards and the penalties for any breach of duty by these peace
officers and guards The PWPA provides that anyone who is a head of a board
commission or other body having charge over a public work can appoint a guard This is
very broad and arguably allows for the appointment of a private army by someone
ldquohaving charge ofrdquo a public work whoever that may be Pursuant to s 2(2) the ldquoguardsrdquo
have the same powers as a ldquopeace officerrdquo
Section 3 sets out the powers a guard or peace officer acquire pursuant to the PWPA
including that a guard may require people entering or approaching a public work to
identify themselves and to state the purpose for which they desire to enter the public
work In addition the guard or peace officer may search without warrant any person or
vehicle entering or attempting to enter a public work The guard or peace officer can
8
refuse to permit a person to enter a public work and can use as much force as necessary in
this endeavour
(c) Boundaries of Public Work
Section 4 provides that a statement under oath by an officer or employee of the person or
entity operating or having control of a public work regarding the boundaries of the public
work serves as conclusive evidence with respect to the boundaries
(d) Offence Power of Arrest
Section 5 provides that any person who neglects or refuses to comply with a request or
direction made by a guard or peace officer is guilty of an offence In addition a person
who enters a public work or an approach to a public work without lawful authority is
guilty of an offence A person found guilty of an offence is liable to a fine of not more
than $500 andor imprisonment of not more than two months A guard or peace officer
has the power to arrest without warrant any person who refuses to comply with a request
or direction of a guard or peace officer and who enters or attempts to enter a public work
without lawful authority
(e) Regulations
Section 6(b) provides that the Lieutenant Governor in Council may define the areas that
constitute approaches to public works while s 6(c) permits regulations to be made
regarding any matter necessary to carry out the intent and purpose of the PWPA
D Events Leading to Passage of O Reg 23310
There was no apparent reference to the possible use of the PWPA until fairly late in the
planning process for the security for the G20 Summit The Province of Ontario originally
9
attempted to obtain support for its security measures through reliance on a federal statute
the Foreign Missions and International Organizations Act (ldquoFMIOArdquo) which provides
that the RCMP can take ldquoappropriate measuresrdquo to ensure the proper functioning of an
intergovernmental conference ldquoin a manner that is reasonable in the circumstancesrdquo8
On May 7 2010 John Burke Deputy Minister of Community Safety and Correctional
Services of Ontario wrote to William Baker Deputy Minister of Public Safety Canada9
stating that security would be enhanced by the existence of an agreement pursuant to s
101(4) of the FMIOA which provides that the Federal Minister of Public Safety may
enter into arrangements with the government of a province concerning the responsibilities
of members of the RCMP and provincial municipal police forces with respect to
ensuring security for the proper functioning of a conference
On June 11 2010 the Provincial Deputy Minister received a reply10 from the Federal
Deputy Minister indicating that such an agreement would not be required for the
Summits since ldquothe current suite of powers and authorities that peace officers possess at
common law or by virtue of any other federal or provincial Act or regulation were
sufficient for the G8 and G20 Summitsrdquo
The Federal Deputy Minister was clear that in his view the police had sufficient authority
at common law and in statute to secure these conferences Similarly the OPP were of the
view that it was not necessary for the police forces to have any additional police powers
8 SC 1991 c 41 s 101(2) Attached as Appendix 5 is a copy of selected sections of the FMIOA 9 Attached as Appendix 6 is a copy of the May 7 2010 letter10 Attached as Appendix 7 is a copy of the letter received on June 11 2010
10
other than those already conferred by virtue of common law and statute (excluding the
PWPA) in order to secure the interdiction zones for the Summits
On May 12 2010 Chief William Blair of the TPS wrote to the Honourable Rick
Bartolucci Minister of Community Safety and Correctional Services11 stating that a
ldquocornerstonerdquo of the TPS security plan for the G20 Summit would be the establishment of
a security perimeter in an area around the Metro Toronto Convention Centre The
purpose of this security perimeter as explained in the letter was to ldquoensure the safety and
security of those attending the Summit the Summit site itself and people and property
within the area close to the Summit siterdquo Chief Blair indicated that the TPS would rely
upon the authority granted to it pursuant to the common law and if certain conditions are
met the FMIOA12 to establish and control the security perimeter However he believed
that the provisions of the PWPA ldquowould also offer legal support for the extraordinary
security measuresrdquo he believed would be necessary Chief Blair therefore requested ldquothe
Lieutenant Governor in Council to designate the area of or highways within the intended
security perimeter as a public work for the period from June 21 2010 through the end of
the Summit on June 27 2010rdquo A detailed description of the area requested to be
designated as a public work was provided to Minister Bartolucci as well as an aerial
photograph of the area
I am not aware that any organization publicly questioned the inherent police power to
erect fences defining the interdiction zone The Canadian Civil Liberties Association
11 See Appendix 312 This probably is in reference to s 101(4) of the FMIOA which provides the authority for the Minister of Public Safety and Emergency Preparedness to enter into arrangements with the government of a province concerning the responsibilities of members of the RCMP and members of the provincial and municipal police forces with respect to ensuring the security for the proper functioning of an intergovernmental conference
11
(ldquoCCLArdquo) published a document entitled ldquoProtecting civil liberties and human rights at
the G20 statement of concernsrdquo on May 21 201013 In this document the CCLA
expressed concern with the size of the security perimeter ldquoParticularly where there is a
primary fence to ensure safety around conference venues and delegate hotels any further
restrictions on mobility or protest must be fully and carefully justifiedrdquo14 However the
CCLA supported ldquothe overall goal of ensuring that the G20 is conducted in a manner that
is safe for delegates protesters and Toronto residents in generalrdquo15 and noted the
RCMPrsquos authority under the FMIOA There was no doubt expressed by the CCLA
concerning the power of police to erect security fences
By letter dated June 15 201016 Minister Bartolucci wrote to Chief Blair acknowledging
the request and stating in part
I agree that there are various sources of legal authority to support the security perimeter I also recognize the desirability of having additional sources of legal authority to ensure clarity regarding the ability of the Toronto Police Service to take the steps that it will be taking Accordingly I am pleased to inform you that a regulation has been made under the PWPA in response to your request
The Minister informed Chief Blair that O Reg 23310 had been filed with the Registrar
of Regulations and would come into force on June 21 2010 and would be revoked as of
June 28 2010 The area requested by Chief Blair to be designated as a ldquopublic workrdquo
was so designated in O Reg 23310
13 Canadian Civil Liberties Association Protecting civil liberties and human rights at the G20 statement of concerns May 21 2010 online Canadian Civil Liberties Association lthttpcclaorgwordpresswp-contentuploads201005G20-CCLA-Statement-of-Concernspdfgt14 Ibid p 415 Ibid p 316 Attached as Appendix 8 is a copy of the June 15 2010 letter
12
Four days earlier on June 11 2010 Mike McDonell the Assistant Commissioner of the
RCMP sent a letter to Chief Blair17 containing a thorough review of the statutory sources
of the RCMPrsquos duties and powers to secure intergovernmental conferences Assistant
Commissioner McDonell outlined the police authority to fully secure the G8 and G20
Summits
More specifically in relation to the Summits the RCMP will be taking measures to fulfill duties related to the protection of Internationally Protected Persons (IPPrsquos) that befall police in general and the RCMP in specific The official visit of the head of state or high ranking dignitary of a foreign country is an event that frequently engenders a real or apprehended threat to the preservation of peace which demands the adoption of proper and reasonable security measures in and by the host country
Furthermore Canada is a signatory of the United Nations Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons Including Diplomatic Agents In that regard Canada has specifically adopted laws requiring peace officers to protect IPPs as defined in section 2 of the Criminal Code in accordance with its international obligationshellip
Legal authorities also permit the RCMP to collaborate with other police forces such as the OPP in the fulfillment of its duties including in relation to securing the perimeter Such collaboration is essential in light of concurrent mandates of policing partners particularly in relation to the legal duties to preserve the peace and protect life and property
E O Reg 23310
On June 2 2010 Cabinetrsquos Legislation and Regulations Committee passed O Reg
23310 It was signed by the Lieutenant Governor on June 3 2010 and published on June
16 2010 on e-Laws a website maintained by the Government of Ontario not frequently
accessed by the public This website provides access to official copies of Ontariorsquos
statutes and regulations O Reg 23310 came into force on June 21 2010 and was
17 Attached as Appendix 9 is a copy of the June 11 2010 letter
13
revoked on June 28 2010 It was not published in The Ontario Gazette18 until July 3
2010 after it had already been revoked Section 23(2) of Ontariorsquos Legislation Act
200619 provides that a regulation is not effective against a person before the earliest of
when the person has actual notice of it the last instant on the day on which it is published
on the e-Laws website or the last instant of the day on which it is published in the print
version of The Ontario Gazette As a result though the technical requirements for
providing notice of O Reg 23310 were met I have concerns whether adequate notice
was given to the public especially in light of the fact that the regulation was not
published in The Ontario Gazette until it had already been revoked
The regulation set out the area where the security fence was to be erected and designated
that area as a ldquopublic workrdquo which then called into play all the powers provided by the
PWPA
ONTARIO REGULATION 23310
made under the
PUBLIC WORKS PROTECTION ACT
Made June 2 2010Filed June 14 2010
Published on e-Laws June 16 2010Printed in The Ontario Gazette July 3 2010
DESIGNATION OF PUBLIC WORKS
Designation 1 The following are designated as public works for the purposes of the Act 1 Everything described in clause (a) of the definition of ldquopublic workrdquo in section
1 of the Act that is located in the area described in Schedule 1 including without limitation and for greater certainty every sidewalk in that area
2 The places described in paragraphs 1 2 and 3 of Schedule 2
18 The Ontario Gazette contains Ontariorsquos legal notices and regulations19 SO 2006 c 21 Sched F
14
Revocation 2 This Regulation is revoked on June 28 2010
Commencement 3 This Regulation comes into force on the later of June 21 2010 and the day
it is filed SCHEDULE 1
AREA REFERRED TO IN PARAGRAPH 1 OF SECTION 1
The area in the City of Toronto lying within a line drawn as follows
Beginning at the curb at the southeast corner of Blue Jays Way and Front Street West then north to the centre of Front Street West then east along the centre of Front Street West to the east curb of Windsor Street then north along the east curb of Windsor Street to the centre of Wellington Street then east along the centre of Wellington Street to the centre of Bay Street then south along the centre of Bay Street to a point directly opposite the north wall of Union Station then west along the exterior of the north wall of Union Station to the centre of York Street then south along the centre of York Street continuing east of the abutments under the railway overpass and continuing south along the centre of York Street to the centre of Bremner Boulevard then west along the centre of Bremner Boulevard to the east curb of Lower Simcoe Street then south along the east curb of Lower Simcoe Street to the north curb of Lake Shore Boulevard West then west along the north curb of Lake Shore Boulevard West to the south end of the walkway that is located immediately west of the John Street Pumping Station and runs between Lake Shore Boulevard West and the bus parking lot of the Rogers Centre then north along the west edge of that walkway to the bus parking lot of the Rogers Centre then west along the south edge of the bus parking lot of the Rogers Centre to the west edge of the driveway running between the parking lot and Bremner Boulevard then north along the west edge of that driveway to the north curb of Bremner Boulevard then west along the north curb of Bremner Boulevard to the east curb of Navy Wharf Court then north along the east curb of Navy Wharf Court to the southwest point of the building known as 73 Navy Wharf Court then east along the exterior of the south wall of that building then north along the exterior of the east wall of that building to the curb of Blue Jays Way then north along the east curb of Blue Jays Way to the curb at the southeast corner of Blue Jays Way and Front Street West
SCHEDULE 2DESIGNATED PLACES REFERRED TO IN PARAGRAPH 2 OF SECTION 1
1 The area within the area described in Schedule 1 that is within five metres of a line drawn as follows Beginning at the south end of the walkway that is located immediately west of the John Street Pumping Station and runs between Lake Shore Boulevard West and the bus parking lot of the Rogers Centre then north along the west edge of that walkway to the bus parking lot of the Rogers Centre then west along the south edge of the bus parking lot of the Rogers Centre to the west edge of the driveway running between the parking lot and Bremner
15
Boulevard then north along the west edge of that driveway and ending at Bremner Boulevard
2 The area within the area described in Schedule 1 that is within five metres of a line drawn as follows
Beginning at the southwest point of the building known as 73 Navy Wharf Court then east along the exterior of the south wall of that building then north along the exterior of the east wall of that building and ending at the curb of Blue Jays Way
3 The below-grade driveway located between Union Station and Front Street West and running between Bay Street and York Street in the City of Toronto
F Information Given to Public Regarding Security Protocol
Attempts were made to inform the public about the security measures that would be in
place leading up to and throughout the G20 The City of Toronto in consultation with
the ISU produced an information article20 and flyers21 No mention is made in the article
or flyers of the PWPA or O Reg 23310 and the powers given to the police The City of
Toronto also prepared an advertisement which appeared in local newspapers22 The
original version of the advertisement made no reference to the fact that people would be
subject to a search when attempting to access the security perimeter although reference
was made to the requirement to show identification and to have a valid purpose for
entering the restricted area A later version of the advertisement included additional text
advising that anyone requesting access to the security perimeter may be subject to a
search However just as with the article and flyers no specific mention was made of the
PWPA or O Reg 23310
20 A million copies of the newsletter Our Toronto which contained an article entitled ldquoWhat to expect during the G20 ndash June 26 amp 27 2010rdquo were delivered to homes in the City of Toronto21 Approximately 10000 flyers were sent to homes and businesses within the affected area The flyercontained general information about security and the anticipated effects on traffic22 The advertisement appeared in the Toronto Star Toronto Sun and Metroland community papers
16
In the days leading up to and throughout the G20 Summit there was apparently a
misunderstanding on the part of the police regarding a purported ldquofive-metre rulerdquo This
confusion likely emanated from the ldquofive-metresrdquo referenced in Schedule 2 of O Reg
23310 However the purpose of Schedule 2 was to designate as ldquopublic work(s)rdquo three
specific private property locations on which the security fence was to be erected that were
not ldquopublic worksrdquo The remainder of the fence was on public sidewalks and streets
which are ldquopublic worksrdquo To ensure that the fence was located on a ldquopublic workrdquo the
drafters designated the area within five metres of the security fence in these three
locations as a ldquopublic workrdquo23 Unfortunately the wording of Schedule 2 was very
cumbersome and the relationship between the area defined in Schedule 1 and the five-
metre reference in Schedule 2 was difficult to understand
Because of this confusion unfortunately the message was conveyed that the regulation
provided for a five-metres zone outside the entire security fence and that therefore the
PWPA applied to this entire area24 The media reported during the G20 summit that the
police had ldquosweepingrdquo powers pursuant to the PWPA within five-metres outside of the
exterior security fence25 O Reg 23310 did not provide the police such authority
23 Attached as Appendix 10 is a copy of a map showing the three specific areas designated in Schedule 2 of O Reg 2331024 Jennifer Yang ldquoJust being near the G20 security zone can get you arrestedrdquo Toronto Star (25 June 2010) online thestarcom lthttpwwwthestarcomnewsgtatorontog20summitarticle828498--just-being-near-the-g20-security-zone-can-get-you-arrestedgt25 David Rider et al ldquoDalton McGuinty Bill Blair defend quiet boost in arrest powersrdquo Toronto Star (26 June 2010) online thestarcom lthttpwwwthestarcomnewsgtatorontog20summitarticle828974--dalton-mcguinty-bill-blair-defend-quiet-boost-in-arrest-powersgt
17
SECTION 3 COMMENTARY
A Public Policy Considerations
There are some overarching public policy considerations which affect the issues I have
been asked to address in the Terms of Reference
As stated earlier the legislation was the product of emergency World War II concerns
related to the possibility of enemy sabotage of important infrastructures The legislative
debates in September of 1939 were particularly concerned with the provincersquos
hydroelectric facilities However notwithstanding these apparently specific concerns
when drafted the definition of ldquopublic workrdquo is extraordinarily broad and from a policy
standpoint raises questions of overbreadth especially given the ability to designate
almost anything a public work In a mere definition section s 1 of the legislation allows
the Lieutenant Governor in Council to designate ldquoany other building place or workrdquo as a
ldquopublic workrdquo However taken to its logical conclusion an entire city or more could be
designated as a ldquopublic workrdquo The definition of ldquopublic workrdquo includes ldquoany provincial
and any municipal public buildingrdquo but ldquopublic buildingrdquo is not further defined thereby
creating an element of uncertainty as to the specific provincial and municipal buildings
captured by this definition While perhaps extreme measures in times of war require
flexibility in all other circumstances legislation of this nature requires limitations and a
more specialized approach
The expression ldquoprivate armyrdquo was used in the Ontario legislative debate in 1939
Theoretically at least private armies could be created through the use of the ldquoguardrdquo
appointing authority by the many individuals who are authorized to appoint guards
pursuant to the PWPA This authority was apparently in response to the Federal
18
Governmentrsquos refusal to assume through the Defence Department the responsibility of
guarding utilities and industries essential to the war effort While such a result might not
have been contemplated in a parliamentary democracy it is clearly unwise to leave such
a possibility open
Section 3 of the PWPA provides in part that a guard or a peace officer
(a) may require any person entering or attempting to enter any public work or any approach thereto to furnish his or her name and addresshellipand to state the purpose for which he or she desires to enter the public work in writing or otherwise
The primary problem I see with this section is the vagueness of the term ldquoapproach
theretordquo An approach could begin at a considerable distance from the public work
Section 6(b) also provides for the making of regulations ldquodefining the areas that
constitute approaches to public works either generally or with regard to a particular
public workrdquo
In addition s 3(b) of the PWPA provides that a guard or peace officer ldquomay search
without warrant any person entering or attempting to enter a public workrdquo This section
does not permit any person to abandon any attempt to enter a public work in order to
avoid being subjected to a warrantless search Such conduct is adopted by persons who
decide not to enter a secured courthouse in order to avoid a warrantless search
Section 4 provides that for the purposes of the PWPA the statement under oath made by
persons engaged in the operation of a public work ldquoas to the boundaries of the public
work is conclusive evidence thereofrdquo Section 4 should be considered with s 5(1) which
provides that ldquoevery person found upon a public work or any approach thereto without
lawful authority the proof whereof lies on him or her is guilty of an offencehellip(emphasis
19
added)rdquo The provision in s 4 that ldquothe statement under oathhellipis conclusive evidence
thereofrdquo appears to remove from a courtrsquos consideration what could be a legitimate
dispute as to the boundaries of a public work or the approach thereto Furthermore the
apparent reversal of the onus of proof regarding lawful authority to be found in a public
work or an approach found in s 5 is also troublesome from a policy and legal point of
view
Accordingly if utilized to the extreme many government officials could appoint many
private armies to restrict access to many (in fact any) public places where the mere
statement under oath by the private guard of the boundaries of the areas under restricted
access is conclusive proof thereof Such potential for abuse is beyond troubling to say
the least
B Review of other Public Reports
As is evident from the foregoing discussion many issues arise regarding the operation of
the PWPA in todayrsquos context These considerations and others also formed the basis of
concerns raised in public reports which I was asked to review
1 Reports of the Canadian Civil Liberties Association
The CCLA preliminary G20 report26 dealt with most of the police related events that
occurred in Toronto during the G20 conference during the weekend of June 26th and 27th
2010 I will only make reference to a few portions of the report that deal with the Terms
of Reference
26 Canadian Civil Liberties Association A Breach of the Peace ndash A Preliminary Report of Observations During the 2010 G20 Summit June 29 2010 online Canadian Civil Liberties Association lthttpcclaorgwordpresswp-contentuploads201006CCLA-Report-A-Breach-of-the-Peace-Preliminary-report-updated-July-8pdfgt
20
The report of the CCLA called for the repeal or significant amendment to the PWPA ldquoto
meet basic constitutional standardsrdquo27 The CCLA ldquosuggests that the broad police powers
granted under the Act are inconsistent with current Charter requirementsrdquo28
I agree with the observation of the CCLA that the provisions of the PWPA led to a ldquolack
of clarity as to the scope of the search and seizure powersrdquo29 which created many
difficulties and conflicts that probably could have been avoided I would also certainly
agree with a conclusory comment in this preliminary report that ldquoit is the duty of police
officers to act with fairness and equanimity toward all citizens in accordance with the law
of the country The presumption of innocence and the protection against arbitrary arrests
and detention are at the core of a commitment to justicerdquo30
The CCLA in partnership with the National Union of Public Employees organized
public hearings for two days in Toronto and one day in Montreal in November of 2010
which they referred to as a Citizens Inquiry The Citizens Inquiry heard from 63 members
of the public who had witnessed policing incidents or had been detained Several lawyers
and academics also participated in the hearing and offered commentary on the events of
the G20 from a legal or policing perspective including issues related to the PWPA A
report of the hearings titled ldquoG20 Toronto Breach of the Peace Public Hearingsrdquo was
released on February 28 2011 which also referred to the PWPA31
27 Ibid p 2228 Ibid p 929 Ibid p 1230 Ibid p 2131 Canadian Civil Liberties Association and the National Union of Public and General Employees G20 Toronto Breach of the Peace Public Hearings February 2011 online Canadian Civil Liberties Association lthttpcclaorgwordpresswp-contentuploads201102Breach-of-the-Peace-Final-Reportpdfgt
21
2 The Ontario Ombudsman Report
The Ontario Ombudsman commenced an investigation after receiving complaints relating
to a variety of issues concerning the G20 The Marin Report recognized that ldquotypically
international summits attract protests and protests can turn violent and even deadlyrdquo32
The report therefore does not quarrel with the requirement that a high level of security is
required for such events
The report in my view accurately describes the PWPA as ldquounique in Canada in terms of
the breadth of its reach and the powers it confershellipno other Canadian statute defining
lsquopublic worksrsquo contains provisions similar to those found in Ontariorsquos Actrdquo33
32 Ontario Ombudsman report Investigation into The Ministry of Community Safety and Correctional Servicesrsquo Conduct in Relation to Ontario Regulation 23310 under the Public Works Protection Act ldquoCaught in the Actrdquo by Andreacute Marin (Toronto Ombudsman of Ontario December 2010) online Ombudsman of Ontario lthttpwwwombudsmanoncamedia157555g20final1-enpdfgt (ldquoMarin Reportrdquo) at para 733 Ibid at para 97
22
SECTION 4 POWERS OF THE POLICE
Pursuant to the Terms of Reference I have been asked to consider for future purposes
whether the powers given to peace officers and guards under the PWPA are necessary to
protect public works secure intergovernmental conferences or for any other purposes
To answer that question it is necessary to assess whether the current common law and
statutory regime provide the police with sufficient powers to perform these vital services
A Common Law Powers and Powers Pursuant to Police Services Acts
The police have extensive common law powers that can be used in protecting and
securing intergovernmental conferences and in protecting public works It is necessary to
examine those powers in order to assess whether and what if any additional powers are
needed such as those provided by the PWPA
Of particular assistance in this regard is R v Knowlton34 where the Supreme Court of
Canada considered whether the powers possessed by peace officers at common law and
statute in securing an area for the protection of a foreign dignitary were lawful The
Supreme Court of Canada held that in order for the exercise of peace officer powers to be
lawful the powers must satisfy the two step test set out in R v Waterfield35 First the
power must be in furtherance of a lawful duty Traditional common law peace officer
duties include the preservation of the peace and the prevention of crime These common
law police duties amongst others are now statutorily enshrined in s 42(1) of Ontariorsquos
Police Services Act (and other provincial police services acts)36 The second part of the
test requires an evaluation of whether the conduct of the peace officer was ldquojustifiedrdquo To
34 [1974] SCR 443 [ldquoKnowltonrdquo]35 See for example R v Dedman [1985] 2 SCR 236 RSO 1990 c P15
23
do so one applies the standard of what is reasonably necessary in light of the totality of
the circumstances In evaluating whether the conduct of the peace officer was justified it
is important to consider ldquothe duty being performed the extent to which some interference
with individual liberty is necessary in the performance of that duty the importance of the
performance of the duty to the public good the nature of the liberty being interfered with
and the nature and extent of the interferencerdquo37
In Knowlton police in Edmonton cordoned off an area as part of the security
arrangements for the visit of Premier Kosygin of the USSR Premier Kosygin had been
assaulted in Ottawa a few days prior to his visit to Edmonton Knowlton entered the
secured area questioning the power of the peace officer to prevent his entry He was
arrested without a warrant and charged with obstructing a peace officer in the execution
of his duties Knowlton argued that the peace officer did not have the power to prevent
his entry and was not acting in the execution of his duty
The Supreme Court of Canada emphasized the heightened importance of security when
there are visiting foreign dignitaries38
It is notorious and of common knowledge that the official visit of the head of state or high rank dignitary of a foreign country friendly as either may be is an event that frequently engenders a real or apprehended threat to the preservation of peace and that calls therefore for the adoption of proper and reasonable security measures in and by the host countryhellipThe restriction of the right of free access of the public to public streetshellipwas one of the steps--not an unusual one--which police authorities considered and adopted as necessary for the attainment of the purpose aforesaid In my opinion such conduct of the police was clearly falling within the general scope of the duties imposed upon them
37 R v Mann [2004] 3 SCR 59 at 7938 Supra note 34 at 447-448
24
In addressing the first part of the Waterfield test the Court referenced provisions of the
Alberta Police Act and the Criminal Code and concluded that the conduct of the peace
officers fell within the general scope of the duties imposed upon them for example
preservation of the peace and prevention of crime39
According to the principles which for the preservation of peace and prevention of crime underlie the provisions of s 30 amongst others of the Criminal Code these official authorities were not only entitled but in duty bound as peace officers to prevent a renewal of a like criminal assault on the person of Premier Kosygin during his official visit in Canada In this respect they had a specific and binding obligation to take proper and reasonable steps The restriction of the right of free access of the public to public streets at the strategic point mentioned above was one of the steps--not an unusual one--which police authorities considered and adopted as necessary for the attainment of the purpose aforesaid In my opinion such conduct of the police was clearly falling within the general scope of the duties imposed upon them
In analyzing the second step of the Waterfield test the Court concluded that there was no
evidence indicating the police officers resorted to an unjustifiable use of the powers
associated with the duties imposed on them
The Court in Knowlton recognized broad police powers to cordon off areas as part of the
security arrangements involving internationally protected persons In addition the Court
found that the warrantless arrest in that case was not an unjustifiable or unreasonable use
of powers associated with the police duties to preserve the peace order public safety and
to enforce the law and prevent crime Finally the Court found that peace officers were
duty bound ldquoto prevent a renewal of a like criminal assault on the person of Premier
Kosygin during his official visit in Canadardquo40 Furthermore it stated the closing of public
39 Ibid 40 Ibid at 447
25
streets ldquowas one of the steps -- not an unusual one -- which police authorities considered
and adopted as necessaryrdquo41
The Knowlton decision clearly acknowledged that the police had the duty and authority to
establish and enforce a secured area to protect a foreign dignitary In order to carry out
these duties the police may do what is reasonably necessary in light of the totality of the
circumstances
Though Knowlton was decided prior to the enactment of the Canadian Charter of Rights
and Freedoms (the ldquoCharterrdquo) this does not in my view affect the clear statement by the
Supreme Court of Canada regarding the duty of the police under the common law and the
Alberta Police Act to provide this security While the facts of Knowlton were quite
compelling in relation to the obvious need to provide adequate security for Premier
Kosygin the decision is equally important authority regarding the general responsibilities
of the police at common law and statute in relation to the preservation of the peace
B Other Statutory Powers
1 Criminal Code
Some specific powers are provided to peace officers pursuant to the Criminal Code42
Section 31 gives peace officers the power to arrest an individual for breach of the peace
Peace officers can arrest those committing the breach of the peace or those who on
reasonable grounds heshe believe are about to join in or renew the breach of the peace
Peace officers also have powers at their disposal under ss 63-69 of the Criminal Code to
deal with the offences of unlawful assembly and riots
41 Ibid at 447-448 42 RSC 1985 c C-46
26
2 Trespass to Property Act
The Ontario Trespass to Property Act43 is a potential source of police power to arrest
without warrant those who are unlawfully on certain premises or who were recently
unlawfully on the premises and refuse to give their name and address44 This statute
deals with illegal entry into both private and public property by creating the offence of
trespass for those who without the express permission of the occupier enter on to
premises or engage in an activity on the premises when it is prohibited by the statute45
Though this statute is primarily used by private property owners to keep unwanted people
off of their property it has also been invoked by the Speaker of the House46 and by the
City of Toronto47 It must be noted however that using the Trespass to Property Act in
relation to removing individuals from ldquopublicrdquo places may raise Charter issues48
3 Foreign Missions and International Organizations Act
The RCMP as peace officers have the general duty to preserve the peace and prevent
crime and offences as set out in s 18 of the Royal Canadian Mounted Police Act49
Additional duties found in s 17 of the Royal Canadian Mounted Police Regulations
198850 include the protection of ldquointernationally protected personsrdquo as defined in s 2 of
the Criminal Code Internationally protected persons include heads of state and their
43 RSO 1990 c T2144 Ibid ss 9(1) 1045 Ibid s 2(1)46R v Behrens [2004] OJ No 5135 (CJ) The Court held that the issue of the trespass notices fell under the Speakerrsquos parliamentary privilege and were not reviewable even on the basis of a Charter argument47R v Semple [2004] OJ No 2137 (CJ)48 In R v Semple the defendants were charged under the Ontario Trespass to Property Act for entering the grounds of Toronto City Hall after being banned from doing so In the end the Court held that the defendantsrsquo peaceful entry onto the grounds was an expression as per s 2(b) of the Charter Torontorsquos notice under the Act infringed on this freedom and in these circumstances it could not be justified under s 1 of the Charter 49 RSC 1985 c R-1050 SOR88-361
27
family members The RCMPrsquos duty to protect internationally protected persons is also
found in s 6(1) of the Security Offences Act51
In addition Canada is a signatory of the United Nations Convention on the Prevention
and Punishment of Crimes against Internationally Protected Persons including
Diplomatic Agents52 This Convention provides that the Government of Canada must
protect visiting heads of state or government foreign ministers representatives or
officials of a state or any official or other agent of an international organization of an
intergovernmental character and the family members that accompany him or her The
RCMP has the responsibility to carry out these security measures
Pursuant to s 101(1) of the FMIOA ldquoThe Royal Canadian Mounted Police has the
primary responsibility to ensure the security for the proper functioning of any
intergovernmental conference in which two or more states participate that is attended by
persons granted privileges and immunities under this Act and to which an order made or
continued under this Act appliesrdquo
The powers to carry out this mandate are found in s 101(2) of the FMIOA ldquothe Royal
Canadian Mounted Police may take appropriate measures including controlling limiting
or prohibiting access to any area to the extent and in a manner that is reasonable in the
circumstancesrdquo It is noteworthy that the FMIOA has legislated the same powers
provided to the police under common law and statute
In order to trigger the RCMP powers described in s 101 the Governor in Council on the
51 RSC 1985 c S-752 UNGA Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons including Diplomatic Agents 20 February 1977 UN Doc I-15410
28
recommendation of the Minister of Foreign Affairs and pursuant to s 5 of the FMIOA
made the G8 Summit Privileges and Immunities Order 201053 on December 10 2009
This order was repealed and a subsequent order54 was made on January 13 2010 A
similar order55 for the G20 Summit was made on March 11 201056
Therefore during the G20 the RCMP had the specific statutory power to limit or
prohibit access to any area and to any extent as long as the measures were appropriate
and done in a manner that was reasonable in the circumstances ldquoThe RCMP may secure
the perimeter of the security zone on land with fencing and restrict access to this zone
through the use of checkpoints and other measuresrdquo57
Though not invoked during the G20 s 101(4) of the FMIOA provides that arrangements
can be entered into with a province concerning the responsibilities of members of the
RCMP and members of the provincial and municipal police forces with respect to
ensuring the security for the proper functioning of an intergovernmental conference No
information was provided to me as to why such an arrangement was not entered into for
the G20
These intergovernmental security provisions of the FMIOA were enacted just prior to the
G8 being held in Kananaskis Alberta in 2002 In light of violent protests at international
events and the 911 terrorist attacks in the United States the Federal Government
53 SOR2009-33654 SOR2010-1355 SOR2010-6256 Supra note 17 ldquoUpon such an Order being made the RCMP in co-operation and collaboration with other police forces becomes impressed with the primary responsibility of ensuring not only the protection of the IPPs but also ensuring lsquosecurity for the proper functioningrsquo of the intergovernmental conference To that end the FMIOA provides that the lsquoappropriate measures including controlling limiting or prohibiting access to any area to the extent and in a manner that is reasonable in the circumstancesrsquo may be takenrdquo57 Ibid
29
considered it timely ldquoto clarify in statute the present common law authority for police to
provide security and protection for high profile international eventsrdquo58 At such events it
was intended that ldquothe RCMP is the lead to make sure that security is providedrdquo59
Given that it was clearly the intention of the Federal Government to have the RCMP as
the lead police force at these international events consideration should be given to
expand the use of the FMIOA to cover all large scale international events such as the
Olympics the Pan American Games and international trade fairs as these events are
routinely attended by heads of state and senior government officials Most recently
Vancouver held the 2010 Olympic and Paralympic Winter Games60 Though federal and
municipal legislation were passed to assist in securing the Games expansion and
application of the FMIOA would have been a better approach The RCMP as the national
police force ought to be in charge pursuant to their authority under the FMIOA
4 Emergency Legislation
Through my consultations with the parties listed in Appendix 2 I heard that while we are
not in a time of war as in 1939 when the PWPA was enacted we live in an age of
international and local terrorism threats Our democratic society must be vigilant in
58 Canada House of Commons Debates 37th Parl 1st Sess No 93 (5 October 2001) at 100059 Canada House of Commons Standing Committee on Public Safety and National Security 40th Parl 3rd
Sess Evidence (25 October 2010)60 In anticipation of this event the Governor General in Council on the recommendation of the Minister of Transport pursuant to the Aeronautics Act (RSC 1985 c A-2) and the Canadian Air Transport Security Authority Act (SC 2002 c 9 s 2) passed the Vancouver 2010 Aviation Security Regulations (SOR2009-298) The purpose of the regulations was to enhance aviation security during the Games The Regulation provided for extra security and extra authorized means to conduct screenings In addition the Vancouver City Council passed the very lengthy By-law No 9962 known as the ldquoVancouver 2010 Olympic and Paralympic Winter Games By-Lawrdquo Specific security measures to be employed at a city live site (described thoroughly in a Schedule to the By-Law) that were enabled by this By-Law included The installation and monitoring of airport style and other security measures including magnetometers and X-ray machines the installation and monitoring of closed circuit television cameras the searching of any person who wished to enter on to a city live site and any bag luggage or other container carried by such person and the prohibiting of access to or removal from a city live site any person who refused to submit to a search
30
maintaining a proper level of security while recognizing that democratic values and
security issues can conflict where public order is at issue It is important to highlight that
provincial legislation exists dealing with both terrorism threats and emergency situations
I have been informed that federal and provincial counter-terrorism plans exist that
address preventing and responding to acts of terrorism
The Police Services Act regulations mandate police forces to establish procedures
consistent with federal and provincial counter-terrorism plans61 and to have policies with
respect to counter-terrorism62 In addition the Emergency Management and Civil
Protection Act allows for orders to be made in situations specifically designated an
ldquoemergencyrdquo63 by the Lieutenant Governor in Council or the Premier that regulate or
prohibit travel and movement to from or within any specified area64 Therefore the
PWPA is not needed to deal with these emergency situations as specific more recent
emergency legislation is in place for that very purpose
C Gaps in Canadian Police Powers
The Ministry of Community Safety and Correctional Services provided me with an
interesting article published in 2010 entitled ldquoThe Gap in Canadian Police Powers
61 Adequacy and Effectiveness of Police Services O Reg 399 s 2862 Ibid s 2963 Section 1 of the Emergency Management and Civil Protection Act defines an ldquoemergencyrdquo as ldquoemergencyrdquo means a situation or an impending situation that constitutes a danger of major proportions that could result in serious harm to persons or substantial damage to property and that is caused by the forces of nature a disease or other health risk an accident or an act whether intentional or otherwise (ldquosituation drsquourgencerdquo)64 RSO 1990 c E9 s 702(4)
31
Canada needs lsquoPublic Order Policingrsquo Legislationrdquo and co-authored by Wesley Pue and
Robert Diab65
This article was prompted by the debate over the cost nature and extent of security to be
employed at the Vancouver 2010 Winter Olympics The authors criticized the fact that
policing authorities in Canada ldquolack specific statutory authorization to take measures
commonly thought necessary to their missionrdquo66 These measures included security
fences in public areas designated protest areas restricted access to public space police
surveillance and searches without cause
The authors recognize that such powers may be necessary but note that ldquono legislature
has ever expressly conferred such powers on policing authorities outside the context of
international intergovernmental conferences Nor does the common law accord such
powers to state officials on its ownrdquo67 I respectfully disagree with this latter statement
It is my view the police have powers pursuant to the common law and statute as I have
discussed in the preceding section
The authors referred to R v Knowlton68 which I have previously discussed While the
authors give Knowlton a very narrow interpretation stating that ldquoits binding principle is a
good deal narrower than the words taken out of context might suggestrdquo69 I however am
of the view that the decision supports the proposition that police have a broad range of
65 Wesley Pue and Robert Diab ldquoThe Gap In Canadian Police Powers Canada Needs lsquoPublic Order Policingrsquo Legislationrdquo (2010) 28 Windsor Rev Legal Soc Issues 87 Wesley Pue is a professor of legal history at the University of British Columbia and Robert Diab is a PhD candidate at the UBC Faculty of Law66 Ibid p 8867 Ibid68 Supra note 3469 Supra note 65 p 92
32
responsibilities with deep historical roots in the common law and codified in statute a
position shared by the Federal Government when it introduced amendments to the
FMIOA The actions of the police in Knowlton were necessarily incidental to their
common law police duties and powers
The authors conclude that this ldquoauthority of police to create zones of exclusion either as
an incident of the general and ancient duties of constableshelliphas never been established in
the courtsrdquo70 I am of the view however that the role of the police in establishing
security zones relating to a crime a serious accident or other emergency is a routine and
well-accepted use of police powers pursuant to their common law and statutory duties I
am not suggesting that this common law authority permits the police to establish security
zones ldquofor the proper functioning of any intergovernmental conference in which two or
more states participaterdquo71 larger than necessary to fulfill their purpose The FMIOA as
amended in 2002 provides the RCMP with ldquoprimary responsibility to ensure the security
for the proper functioning of the intergovernmental conferencerdquo72 It is interesting
however that when the Federal Government was enacting this specific authority the
legislative debates indicated that the government was merely clarifying ldquoin statute the
present common law authority for police to provide security and protection for high
profile international eventsrdquo73
Security perimeters are routinely erected by police in the context of the commission of a
crime motor vehicle and other accidents as well as the Santa Claus parade and other
70 Ibid p 9671 Supra note 8 s 101(1)72 Ibid73 Supra note 58
33
parades It would in my view be quite impractical and unnecessary to legislate an
extensive code of police powers given their common law and statutory responsibilities to
generally maintain public order It is not advisable in my opinion to be prescriptive in
any way regarding what actions the police can take since they must assess what the
situation warrants while at the same time considering individual rights and freedoms
The details of any police response to an emergency must be tailored to the exigencies
related to the situation
The police clearly have common law and statutory authority to conduct warrantless
searches in specific situations (ldquoin exigent circumstancesrdquo)74 However when
warrantless searches must be carried out on a regular routine basis the police are acting
more like full time security guards and there should be specific statutory authority
provided to give such powers
I certainly accept the general proposition the authors assert that the mobility rights of
citizens should not be unreasonably or unfairly dealt with However one only need be
aware of the massive amount of construction taking place on the streets of Toronto as this
Report is being written to appreciate that it is not always reasonable to expect that ldquothe
rights of businesses homeowners and ordinary citizens to go about their routine
activities without interruptionrdquo75 will go unhindered While generally desirable it cannot
be legally guaranteed At the same time the authors do concede that ldquoimportant as they
74 Supra note 42 s 4871175 Supra note 65 p 89
34
are the rights of assembly movement and protest are not unqualified They can ndash and
should ndash be balanced against other important public needsrdquo76
In my view public policing at times requires innovation as it often benefits from
creative problem solving If police abuse their common law powers related to ldquopublic
order policingrdquo they are accountable to a multiplicity of authorities and the rule of law
most particularly the Charter The legal rights outlined in the Charter such as ldquothe
principles of fundamental justicerdquo77 security ldquoagainst unreasonable search and seizurerdquo78
and ldquothe right not to be arbitrarily detained or imprisonedrdquo79 are described very
generally However they were chosen deliberately as it was recognized that in each case
there is an inherent tension between imposing security measures and fundamental rights
and freedoms Determining which is paramount will be based on the facts of each case
76 Ibid p 9177 Canadian Charter of Rights and Freedoms s 7 Part I of the Constitution Act 1982 being Schedule B to the Canada Act 1982 (UK) 1982 c 1178 Ibid s 879 Ibid s 9
35
SECTION 5 LEGAL ANALYSIS OF THE PUBLIC WORKS PROTECTION ACT
A Legal Analysis of the Legislation
Many stakeholders have questioned the constitutional validity of the PWPA and O Reg
23310 The Ontario Ombudsman seriously questioned whether O Reg 23310 could
pass ldquoconstitutional musterrdquo80 The CCLA suggested that the broad police powers
granted under the PWPA were inconsistent with the Charter81
To the same effect were comments made by Premier Dalton McGuinty who described
the PWPA as ldquoan archaic law that was used to undermine Torontoniansrsquo civil rights
during the G20rdquo82 He elaborated83
The issue is whether itrsquos appropriate given our present-day values and given an old law which I am confident doesnrsquot strike the balance that you and I would want today in terms of public safety and individual freedom of expressionhellipWhen you start talking about civil rights individual freedoms yoursquore talking about those things that in fact define us as a free and democratic societyhellipItrsquos something that is real and meaningful and important to all of us
The Terms of Reference for this Review do not require that I conduct a constitutional
analysis of the PWPA I have however been asked to consider areas for reform and if
appropriate make specific recommendations for amendment or repeal This does require
that I therefore consider whether the legislation may be vulnerable to constitutional
challenge
Section 2(b) of the Charter guarantees everyone the fundamental freedom of expression
The definition of ldquoexpressionrdquo has been interpreted broadly ldquoActivity is expressive if it
80 Supra note 32 at para 23381 Supra note 26 p 982 Robert Benzie and Rob Ferguson ldquoMcGuinty shifts focus to fixing G20 lawrdquo Toronto Star (10 December 2010) online thestarcom lthttpwwwthestarcomnewscanadaarticle905436--mcguinty-shifts-focus-to-fixing-g20-lawgt 83 Ibid
36
attempts to convey meaningrdquo84 While freedom of expression is not absolute there is
very little that is not considered expression However expression that advocates violence
is not protected under s 2(b)85
The Supreme Court of Canada in Committee for the Commonwealth of Canada v
Canada held that s 2(b) ldquodoes not encompass the right to use any and all government
property for purposes of disseminating onersquos views on public matters but I have no doubt
that it does include the right to use for that purpose streets and parks which are dedicated
to the use of the public subject no doubt to reasonable regulation to ensure their
continued use for the purposes to which they are dedicatedrdquo86 It seems clear that
protesting in public streets is a form of expression protected by s 2(b) Protesting at an
intergovernmental conference is clearly expressive in nature
In challenges alleging that a statute contravenes s 2(b) of the Charter a court would
examine whether the purpose or effect of a law contravenes section 2(b)87 There is no
reason to suggest that the purpose of the PWPA was to infringe the freedom of
expression The purpose of the PWPA is to protect important public infrastructures A
court would then have to consider whether the effect of the PWPA may have resulted in
an infringement of freedom of expression
O Reg 23310 defined significant portions of downtown Toronto as a ldquopublic workrdquo
Section 3(c) of the PWPA allows peace officers to refuse entry into public works which
therefore limits the areas in which protesters could express themselves By creating the
84 Irwin Toy Ltd v Queacutebec (Attorney General) [1989] 1 SCR 927 at 96885 Ibid at 97086 [1991] 1 SCR 139 at 165-16687 Peter Hogg Constitutional Law of Canada loose-leaf (consulted on 7 January 2011) 5th ed (Toronto Thomson Reuters Canada Limited 2007) at 43-6
37
relatively large security perimeter designated by the regulation individuals may allege
they were not permitted to communicate directly with those they were protesting against
Furthermore individuals could not communicate in public places such as public streets
where the right to freedom of expression has previously been found to exist88
Commissioner Ted Hughes completed an interim report following a public hearing into
the complaints regarding events that took place with respect to the Asia Pacific Economic
Cooperation (APEC) Conference in Vancouver British Columbia in November 1997
Commissioner Hughes recommended that generous opportunity should be afforded to
peaceful protesters to be seen in their protest activities by guests at the event89
Section 7 of the Charter provides that ldquoEveryone has the right to life liberty and security
of the person and the right not to be deprived thereof except in accordance with the
principles of fundamental justicerdquo The PWPA raises issues regarding the liberty and
security of the person in providing for warrantless searches and stopping for
identification Furthermore vague laws offend two fundamental values of our legal
system90 Firstly individuals are not provided with sufficient guidance as to what
behaviour a law prohibits Secondly those in charge of enforcing the law are not
provided with clear guidance as to how to enforce it A vague law can lead to inconsistent
and arbitrary enforcement91
88 Supra note 86 89 Canada Commission for Public Complaints Against the RCMP APEC ndash Commission Interim Report (31 July 2001) at s 3111 (Commissioner Ted Hughes QC) online Commission for Public Complaints Against the RCMP lthttpwwwcpc-cppgccaprrrepphrapecapec-31-engaspxgt90 Supra note 87 at 47-60 91 ldquoA vague provision does not provide an adequate basis for legal debate that is for reaching a conclusion as to its meaning by reasoned analysis applying legal criteria It does not sufficiently delineate any area of risk and thus can provide neither fair notice to the citizen nor a limitation of enforcement discretion Such
38
As described by Professor Hogg92
The requirement that any limit on rights be prescribed by law reflects two values that are basic to constitutionalism or the rule of law First in order to preclude arbitrary and discriminatory action by government officials all official action in derogation of rights must be authorized by law Secondly citizens must have reasonable opportunity to know what is prohibited so that they can act accordingly Both these values are satisfied by a law that fulfils two requirements (1) the law must be adequately accessible to the public and (2) the law must be formulated with sufficient precision to enable people to regulate their conduct by it and to provide guidance to those who apply the law
As I stated earlier the phrase ldquoany approach theretordquo contained in s 3(a) of the PWPA is
potentially vague No criteria are provided to assist in determining when one is on ldquoany
approach theretordquo A phrase such as ldquoany approach theretordquo is subject to many potential
interpretations It is arguable that this language does not provide reasonable guidance for
individuals to obey the law and for the law to be consistently enforced
Section 8 of the Charter provides that ldquoEveryone has the right to be secure against
unreasonable search or seizurerdquo A warrantless search or seizure is only reasonable if the
search was authorized by law the law itself is reasonable and the manner in which the
search carried out was reasonable93 The fact that no reasonable or probable suspicions
are needed to carry out a search pursuant to s 3(b) of the PWPA raises some issues The
only prerequisite to such a search is that the person or vehicle being subjected to a search
is entering or attempting to enter a public work
a provision is not intelligible to use the terminology of previous decisions of this Court and therefore it fails to give sufficient indications that could fuel a legal debaterdquo (R v Nova Scotia Pharmaceutical Society [1992] 2 SCR 606 at 639-640) 92 Supra note 87 at 38-1293 R v Nolet [2010] SCJ No 24 at para 21
39
Whether the PWPArsquos s 3(b) authority to undertake warrantless searches is ldquoreasonablerdquo
depends on the reasonableness of the impact on the subject of the search ldquoThe
individuals reasonable expectation of privacy must of course be balanced against the
public interest in effective law enforcementrdquo94 It is harder to justify a warrantless search
where the reasonable expectation of privacy is higher For example interference with
bodily integrity will raise the standard of reasonableness Conversely in situations where
people expect to have a lower level of privacy the standard to prove reasonableness is
lower
One rightfully has some expectation of privacy when in public but it does not rise to the
level of privacy that one expects in onersquos home The expectation of privacy further
decreases when one attempts to enter a ldquopublic workrdquo especially in the context of a
secured barrier to an intergovernmental conference
Section 9 of the Charter provides that ldquoEveryone has the right not to be arbitrarily
detained or imprisonedrdquo95 Under s 3(a) of the PWPA a person entering or attempting to
enter or approach a public work must provide his or her name and address and state the
purpose for which he or she desires to enter the public work In order for a guard or
peace officer to carry out this duty the guard or peace officer may ldquostoprdquo the person from
further approaching or entering the public work and the person is not permitted under the
statute to decide not to enter By so doing it is arguable the guard or peace officer has
assumed control over the movement of the individual by a demand or direction The
94 R v Rao [1984] OJ No 3180 at para 79 (CA)95 ldquoDetention under s 9hellipof the Charter refers to a suspension of the individualrsquos liberty interest by a significant physical or psychological restraint Psychological detention is established either where the individual has a legal obligation to comply with the restrictive request or demand or a reasonable person would conclude by reason of the state conduct that he or she had no choice but to complyrdquo (R v Grant [2009] SCJ No 32 at para 44)
40
PWPA provides for a significant legal consequence if the demand or direction is not
followed since ldquoEvery person who neglects or refuses to comply with a request or
direction made under this Act by a guard or peace officer and every person found upon a
public work or any approach thereto without lawful authority the proof whereof lies on
him or her is guilty of an offence and on conviction is liable to a fine of not more than
$500 or to imprisonment for a term of not more than two months or to bothrdquo96
Pursuant to s 3(b) of the PWPA a guard or peace officer may search any person entering
or attempting to enter a public work These searches would necessitate the detention of a
person If a guard or peace officer performs such a search he or she has taken control
over the movement of the person by a demand or direction The same serious legal
consequence results from failing to obey this demand or direction as that which results
from failing to obey the demand or direction pursuant to s 3(a) of the PWPA As a
result ldquodetentionsrdquo could occur pursuant to both s 3(a) and s 3(b) of the PWPA
The question that would need to be addressed in any challenge to the PWPA is whether
the detentions permitted by the PWPA are arbitrary in nature The use of the term ldquoany
approach theretordquo is vague and imprecise A person could be deemed to be on ldquoany
approach theretordquo a great distance from the entrance of a public work and their detention
might very well be arbitrary In addition the fact that the guards and peace officers
determine the boundaries of the ldquoapproachesrdquo which cannot be contested seems
arbitrary as well as who they chose to search
96 It should be noted that not all communications with state authorities and police officers will amount to a detention The question is whether a person may reasonably believe that he or she is free to refuse to comply
41
Section 11(d) of the Charter provides that ldquoAny person charged with an offence has the
right to be presumed innocent until proven guilty according to law in a fair and public
hearing by an independent and impartial tribunalrdquo This requires that the Crown have the
burden of proving the guilt of an individual charged with an offence97 Provisions that
place the burden on the accused to disprove on the balance of probabilities an essential
element of an offence raises s 11(d) concerns because convictions would be possible
even if reasonable doubt existed98 The presumption of innocence is not only infringed
upon by a requirement that an accused disprove an essential element of an offence but
also any requirement on an accused to prove a fact on the balance of probabilities to
avoid conviction
Section 5(1) of the PWPA states that ldquoEvery person who neglects or refuses to comply
with a request or direction made under this Act by a guard or peace officer and every
person found upon a public work or any approach thereto without lawful authority the
proof whereof lies on him or her is guilty of an offence and on conviction is liable to a
fine of not more than $500 or to imprisonment for a term of not more than two months or
to bothrdquo For the offence of being found upon a public work or on any approach to a
public work without lawful authority the burden of proof has been ldquoshiftedrdquo from the
Crown to the accused to prove lawful authority
As the foregoing analysis reveals there are certainly many concerns that arise when one
places the PWPA under the lens of the Charter However the rights and freedoms
provided by the Charter are not absolute They are ldquosubject only to such reasonable
97 R v Oakes [1986] 1 SCR 10398 Ibid at 132
42
limits prescribed by law as can be demonstrably justified in a free and democratic
societyrdquo99
In assessing whether a law which infringes the Charter is saved by s 1 a court examines
both the object of the law and the measures taken to achieve that objective A lawrsquos
objective achieves the status of being sufficiently important to justify overriding a
Charter right only when it is consistent with the values of a free and democratic society
The objective must relate to pressing and substantial concerns and not concerns that are
trivial and must be focussed on ldquothe realization of collective goals of fundamental
importancerdquo100 The measures adopted must be ldquorationally connectedrdquo to the objective of
the law101 The measures ldquoshould impair lsquoas little as possiblersquo the right or freedom in
questionrdquo102 Furthermore there must be ldquoa proportionality between the effects of the
measures which are responsible for limiting the Charter right or freedom and the
objective which has been identified as of lsquosufficient importancersquordquo103
An issue that may affect whether the potential limitation on rights and freedoms of the
PWPA and O Reg 23310 were ldquoprescribed by lawrdquo is whether the regulation was
adequately accessible to the public The Ontario Ombudsman the CCLA and the Ontario
Bar Association (ldquoOBArdquo) all noted a lack of notice regarding O Reg 23310 and its
effects prior to and during the G20 While the text of the regulation was available prior
99 Charter s 1 The Superior Court of Quebec decision of Tremblay v Queacutebec (Attorney General) [2001] JQ No 1504 (CS) involved an interim injunction brought by an applicant who was denied entry into the secured perimeter during the 2001 Summit of the Americas in Queacutebec City The applicant sought an injunction to either eliminate the security barrier or to be given a pass to let him within the secured perimeter Even though the Court held that the erection of the security zone violated the applicantrsquos right to freedom of expression and peaceful assembly The court held that the infringement was ldquodemonstrably justified in a free and democratic societyrdquo100 Supra note 97 at 136101 Ibid at 139102 Ibid103 Ibid
43
to the G20 it was only available on a website not frequently accessed by the public
Since O Reg 23310 was not published in The Ontario Gazette until after it was
revoked it may be that the regulation was not adequately accessible to the public
Reverse onus offences have been found to be ldquorationally connectedrdquo when there is plainly
a rational connection between the proven fact and the fact to be presumed Reverse
onuses have also been upheld when the burden placed on the Crown would be virtually
impossible to meet (such as proving sanity)104 Even if the accused only has the burden
of disproving the fact that heshe did not have lawful authority to be in a public work or
on an approach thereto there may not be a rational connection between the proven fact
and the fact to be presumed
The history of threats and violence at previous intergovernmental conferences
demonstrated that the protection of G20 participants was a pressing and substantial
concern However given the broadness of the PWPA every exercise of it raises the
potential for Charter scrutiny
Recommendation
Given the public policy considerations I have raised regarding the PWPA and Charter
concerns that could arise I recommend that the PWPA be repealed after the Province has
considered potential policy and security gaps as a result of its repeal
B Other uses of the Public Works Protection Act
It appears from my consultations with stakeholder groups that if the PWPA is repealed
104 R v Chaulk [1990] 3 SCR 1303 at 1340
44
there are two areas which may require legislation to provide specific peace officer
powers These two areas are court security and the protection of nuclear power facilities
and other power generating infrastructures
1 Court Security
During my decade as Ontariorsquos Attorney General (1975 to 1985) there were three
murders in provincial courthouses as well as many threats to members of courthouse staff
and others As violent acts in courthouses can be anticipated courtroom security is often
required
Individuals are compelled to go to court for a variety of reasons such as appearing as an
accused as a witness or for jury duty To provide protection to those who work there or
are compelled to attend an adequate level of court security may require a search without
warrant of each and every individual who seeks to enter a courthouse It is not reasonable
to require prior judicial authorization for each search that takes place
The courts have considered the constitutionality of these provisions of the PWPA in
conjunction with section 137 of the Ontario Police Services Act in the context of court
security
Section 137 of the Ontario Police Services Act imposes a responsibility on municipal
police services boards to secure the premises where court proceedings are conducted and
includes
1 Ensuring the security of judges and of persons taking part in or attending proceedings
45
2 During the hours when judges and members of the public are normally present ensuring the security of the premises
3 Ensuring the secure custody of persons in custody who are on or about the premises including persons taken into custody at proceedings
4 Determining appropriate levels of security for the purposes of paragraphs 1 2 and 3
In R v Campanella105 Ms Campanella was attending the John Sopinka Courthouse in
Hamilton At the courthouse there were signs posted stating that those who entered
would be searched for weapons When Ms Campanellarsquos bag was searched marijuana
was found and she was charged with the possession of marijuana She argued that her s
8 Charter protection against unreasonable search and seizure had been violated and the
marijuana discovered during the search should therefore be excluded as evidence The
trial judge and the summary convictions appeal court rejected the section 8 Charter
argument and the appellant appealed to the Ontario Court of Appeal
The Ontario Court of Appeal agreed that ldquogiven the importance of the government
objective and the context in which these searches take place it is reasonable to authorize
warrantless searches of those entering courthouse facilitiesrdquo106 The Court stated ldquothe
only effective way to diminish the risk in a large courthouse is to subject everyone
without prior security clearance to some kind of inspection I can see no other feasible
means of achieving the aimrdquo107
The Court also pointed out the concern relating to the erosion of the benefits and
105 [2002] OJ No 5104 (SCJ) affrsquod [2005] OJ No 1345 (CA) [ldquoCampanellardquo]106 R v Campanella [2005] OJ No 1345 at para 17 (CA)107 Ibid at para 19
46
protections conferred by s 8 of the Charter108
I am sensitive to the concern that we should not erode the benefits and protections of s 8 by gradually sanctioning ever-greater intrusions into privacy because of unfounded fears We should not lightly accept that searches in public places are justified solely because people have become used to them and expect them However the record in this case establishes the justification for the kinds of searches carried out in this case
Ultimately the appeal was dismissed and s 137 of the Police Services Act and s 3(b) of
the PWPA) were held to comply with s 8 of the Charter109
In its consultations with me the OBA similarly stated that the existing nature of court
security is necessary and is generally ldquowell toleratedrdquo At the same time however it
submits that the security regime should not be ldquoshoehornedrdquo into the PWPA regime and
that it would be preferable to provide a legislative framework tailored for the specific
security requirements While the PWPA has been relied upon as support for the exercise
of powers by the police in providing court security the OBA submits that the PWPArsquos
ldquosingle security schemerdquo which declares something a ldquopublic workrdquo is an ldquoawkward
blunt instrument in a world where more specialized tools are necessaryrdquo When
warrantless searches are being done on a routine basis it is advisable to have specific
legislation providing peace officers with such power
Recommendation
Court security legislation is currently in place in many jurisdictions across Canada and
contain provisions that permit warrantless searches of persons wanting to access a
108 Ibid at para 25109 The Court in R v SS [2005] OJ No 5002 (SCJ) agreed with the findings and rationale of the Court of Appeal in Campanella
47
courthouse The constitutional validity of such legislation in Manitoba was upheld by that
provincersquos highest court110
Given the ongoing need for warrantless searches at courthouses the Province of Ontario
should consider specific court security legislation in Ontario to support the security
measures in our courthouses if the PWPA is to be repealed taking into consideration the
responsibilities of the municipal police services boards provided in s 137 of the Police
Services Act This legislation should only be passed after proper notice consultation and
legislative debate
2 Power Generating Infrastructures
It is clear from the submissions that I received from representatives of OPG and the
Canadian Nuclear Safety Commission (ldquoCNSCrdquo) that the PWPA currently plays a role in
providing security officers with the powers to secure power generating infrastructures
including the ability to carry firearms and the ability to stop and require identification
from those in proximity to those nuclear plants
Security is of the utmost importance in protecting a nuclear power plant Members of the
public do not need to access a nuclear or similar power facility unless employed at the
facility or carrying out work for the facility111
The security of areas within nuclear power plants is governed by the Nuclear Security
110 R v Lindsay [2004] MJ No 380 (CA) 111 Though the discussion focuses on nuclear power plants I have been informed that other power generating infrastructures use the PWPA to designate their security officers as guards As a result if the PWPA is repealed it will be necessary to broaden the consultations in relation to these other power generating infrastructures
48
Regulations112 Every nuclear power plant must be located within a ldquoprotected areardquo113
This protected area is the area within a fenced perimeter which is alarmed and
continually patrolled This area must be equipped with devices that employ two
independent systems to detect intrusion into the area114 The Nuclear Security
Regulations also provide detailed specifications for the barrier which must enclose the
protected area115 In addition licensees must ldquoidentify all vital areas and implement
physical protection measures ndash including access control and measures designed to delay
unauthorized accessrdquo116
The Nuclear Security Regulations also provide detailed provisions regarding entry into
protected areas No person can ldquoenter a protected area without physical proof of the
recorded authorization of the licenseerdquo117 Further to this on entry into a protected area
ldquothat personrsquos identity shall be verified by two separate personnel identity verification
systems one of which is an access card reader and the other of which is a biometric
personnel identity verification devicerdquo118 Licensees must also ldquoensure that vehicle
portals are used for the entry and exit of land vehicles into and from a protected areardquo119
Physical protection measures are also required to reduce the chance of a forced land
vehicle entry into a protected area120
The power to conduct searches upon entry to a protected area is also provided by the
112 SOR2000-209 113 Ibid s 8114 Ibid s 11(a)(i)115 Ibid s 9116 Ibid s 141117 Ibid s 17(1)118 Ibid s 171119 Ibid s 91(1)120 Ibid s 91(4)
49
Nuclear Security Regulations Signs must be posted that are visible to people about to
enter the protected area stating that they must allow a nuclear security officer (ldquoNSOrdquo) to
ldquosearch them and everything in their possession including any land vehicle for weapons
and explosive substancesrdquo121 In addition when leaving the protected area people must
allow NSOs to ldquosearch them and everything in their possession including any land
vehicle for Category I II or III nuclear materialrdquo122 People are not permitted to enter or
leave a protected area unless these searches are carried out123 The Nuclear Security
Regulations provide for the method of search including ldquoa hand-held scanner a walk-
through scanner or any similar devicerdquo124 In addition if an NSO determines it
necessary a frisk search can be carried out by a person of the same sex125
I have been informed that the area outside of but adjacent to the ldquoprotected areardquo is
referred to as the ldquocontrolled areardquo This area includes roadways and waterways within
the nuclear facilityrsquos property boundaries adjacent to or in close proximity to the nuclear
power plantrsquos protected area and may be generally accessible to the public
As a result of the September 11 2001 terrorist attacks the Nuclear Security Regulations
were amended to require that high security nuclear facilities maintain an on-site armed
Nuclear Response Force (ldquoNRFrdquo)126 The NRF is composed of specialized NSOs
Section 32 of the Nuclear Security Regulations requires the NRF to be capable of making
an effective intervention taking into account the threat
121 Ibid s 27(1)(a)122 Ibid s 27(1)(b)123 Ibid s 27(2)124 Ibid s 27(5)(a)125 Ibid s 27(5)(b)126 Ibid s 32
50
Members of the NRF are mandated by the Nuclear Security Regulations to be ldquotrained in
the use of firearms authorized to carry firearms in Canada and qualified to use themrdquo127
However to satisfy this requirement the NRF resorts to the PWPA since the federal
regulations do not authorize the NRF to carry firearms without a licence However
under s 2(1) of the PWPA NSOs are designated as ldquoguardsrdquo with the powers of a peace
officer most significantly to carry and use firearms without having to be licensed128
Such a designation also enables the OPG to acquire and dispose of firearms
In the consultations I had with the OPG and the CNSC they advised me that NSOs
receive training equivalent to Canadian police standards and that NRF officers receive
training equivalent to federal and provincial police tactical team requirements
Another aspect of the PWPA used to secure nuclear power plants relates to powers
exercised by NSOs in ldquocontrolled areasrdquo The federal regulations do not provide the
NSOs with any power to demand identification within this area However pursuant to
the PWPA as appointed ldquoguardsrdquo the NSOs have the power to demand identity
verification in the controlled area They also have the authority to arrest anyone who
obstructs NSOs in the performance of their duties under the PWPA
In addition to using the PWPA to secure the controlled areas I have been advised by the
OPG that NSOs use powers pursuant to the PWPA to secure areas within 100 metres of a
nuclear facilityrsquos property line immediately adjacent to the controlled area These powers
are exercised under the broad language of the PWPA regarding ldquoapproaches to public
127 Ibid s 1 (on-site nuclear response force definition)128 Section 11707 of the Criminal Code exempts peace officers from licensing requirements for possessing firearms and other prohibited and restricted weapons
51
worksrdquo This is an illustration of the problem with the vagueness of this language in the
legislation As these powers are exercised on public land they could be challenged as a
potential infringement on individual rights and freedoms However I have been advised
that there have been no such incidents to date The need to ensure the security of these
facilities must be taken into the balance
NSOs must be able to monitor and control access to the controlled areas and areas close
to a nuclear power plantrsquos property line This provides for a more secure perimeter
around these facilities They need authority to challenge individuals acting in a suspicious
manner or conducting surveillance of nuclear facilities The OPG has informed me that
areas outside a nuclear facilityrsquos property line immediately adjacent to the controlled
area are still close enough to take advantage of the short distance to conduct intelligence
using high-powered surveillance equipment These nuclear power plants are not located
on isolated islands and are therefore vulnerable Both the Pickering Nuclear Generating
Station and the Darlington Nuclear Generating Station operate within major urban areas
being 30 km and 60 km east of downtown Toronto respectively I am advised that
previous events such as ldquoThe Toronto 18rdquo129 have shown that those intent on targeting
vital infrastructure such as power generating facilities often use reconnaissance and
intelligence gathering as precursor tactics
Recommendation
If the PWPA is to be repealed it is imperative that those who secure our nuclear and
power generating facilities be given the requisite specific legislative powers to do so
129 See for example ldquoLast 2 Toronto 18 accused found guiltyrdquo CBC News (23 June 2010) online cbcca lthttpwwwcbccanewscanadatorontostory20100623toronto-18-verdicthtmlgt
52
The source for these powers should be set out in the federal Nuclear Security
Regulations However if this is not a desired option the Government of Ontario must
consider specific legislation setting out the specific powers required to properly secure
these facilities and the specific location in which these powers can be exercised Such
legislation should not be passed without proper notice consultation and legislative
debate
53
SECTION 6 CONCLUSION
The PWPA was enacted in 1939 to support the war effort At the time the protection of
Ontariorsquos hydroelectric facilities from sabotage was of particular concern Since then the
PWPA has been used to provide the legal foundation for the powers exercised by the
police in providing court security and even more recently by the OPG in securing
nuclear power facilities In June 2010 the PWPA was used to provide powers to secure
intergovernmental conferences The vagueness of the PWPA permits it to be used in
situations when it is arguably not necessary and potentially abusive In my view the
PWPA has been used for purposes beyond its original intent
The time for the PWPA seems to have passed If the Government of Ontario enacts as I
have suggested specific legislation to provide for courthouse security and power
generating infrastructure security it would appear that there is no longer a need for the
PWPA I am also mindful of the existence of counter-terrorism and emergencies
legislation to deal with these situations as they arise
ldquoIn determining the boundaries of police powers caution is required to ensure the proper
balance between preventing excessive intrusions on an individualrsquos liberty and privacy
and enabling the police to do what is reasonably necessary to perform their duties in
protecting the publicrdquo130 The overly broad and vague language of the PWPA does not
strike this required balance with individual rights and freedoms
The late Justice Jackson of the United States Supreme Court stated that every
emergency power once conferred ldquolies about like a loaded weapon ready for the hand of
130 R v Clayton [2007] 2 SCR 725 at 742
54
any authority that can bring forward a plausible claim of an urgent needrdquo131 The need to
protect the public must be balanced with the requirement to preserve fundamental rights
and freedoms
Yet at the same time ldquoCanadians are entitled to demand the best public order policing
possible from their governmentrdquo132 There is no question that we live in a different world
post 911 We live in difficult times with constant threats both domestically and from
abroad The police clearly need to be given adequate powers to carry out their duties
The police use their expertise on a daily basis to assess the powers they require In
instances when they take action that exceeds their powers their actions are examined by
various mandated bodies This process I believe results in the proper balance between
police powers and individual rights and freedoms Therefore any legislation that purports
to grant special police powers must be specific and direct and developed in consultation
with stakeholders and tested through thorough debate in our transparent democratic
system
131 Korematsu v United States 323 US 214 (1944)132 Supra note 26 p 8
55
REVIEW OF THE PUBLIC WORKS PROTECTION ACT
TABLE OF CONTENTS
Page
SECTION 1 INTRODUCTION 1
A Terms of Reference and Scope of Review 1
B Factual Background 1
SECTION 2 THE PUBLIC WORKS PROTECTION ACT 3
A History of the Public Works Protection Act 3
B Current Uses of the Public Works Protection Act 4
C Outline of the Public Works Protection Act 5
1 Discussion of Key Sections 7
(a) Definition of ldquoPublic Workrdquo 7
(b) Appointment and Powers of Guards and Peace Officers 8
(c) Boundaries of Public Work 9
(d) Offence Power of Arrest 9
(e) Regulations 9
D Events Leading to Passage of O Reg 23310 9
E O Reg 23310 13
F Information Given to Public Regarding Security Protocol 16
SECTION 3 COMMENTARY 18
A Public Policy Considerations 18
B Review of other Public Reports 20
1 Reports of the Canadian Civil Liberties Association 20
2 The Ontario Ombudsman Report 22
SECTION 4 POWERS OF THE POLICE 23
A Common Law Powers and Powers Pursuant to Police Services Acts 23
B Other Statutory Powers 26
1 Criminal Code 26
2 Trespass to Property Act 27
3 Foreign Missions and International Organizations Act 27
-i-
TABLE OF CONTENTS (continued)
Page
4 Emergency Legislation 30
C Gaps in Canadian Police Powers 31
SECTION 5 LEGAL ANALYSIS OF THE PUBLIC WORKS PROTECTION ACT 36
A Legal Analysis of the Legislation 36
B Other uses of the Public Works Protection Act 44
1 Court Security 45
2 Power Generating Infrastructures 48
SECTION 6 CONCLUSION 54
-ii-
SECTION 1 INTRODUCTION
A Terms of Reference and Scope of Review
In September 2010 I was retained by the Ministry of Community Safety and Correctional
Services to conduct a review of the Public Works Protection Act (the ldquoPWPArdquo)1
The Terms of Reference2 for this review provide that I am to identify areas of the PWPA
for reform and if appropriate make specific recommendations for amendment or repeal
(the ldquoReviewrdquo) As part of the process of conducting this Review I was requested to take
into account the historical context of the PWPA and examine its current uses I was also
requested to undertake discussions with key stakeholder groups and other interested
parties3 and to review other relevant reports
The focus of this Review as stated in the Terms of Reference is ldquoto develop a foundation
for future legislationrdquo
B Factual Background
On June 19 2008 Prime Minister Stephen Harper announced that Huntsville Ontario
would host the G8 Summit scheduled for June 25 - 26 2010
On December 7 2009 the Prime Minister announced that Toronto Ontario would host
the G20 Summit scheduled for June 26 - 27 2010 It was not until February 19 2010
that the specific site of the G20 Summit was announced to be the Metro Toronto
Convention Centre in downtown Toronto
1 RSO 1990 c P552 Attached as Appendix 1 is a copy of the Terms of Reference3 Attached as Appendix 2 is a list of all key stakeholder groups and interested parties with whom I met during the course of this Review
1
An Integrated Security Unit (ldquoISUrdquo) was established in 2008 to deal with the security
issues relevant to the G8 and later the G20 Memorandums of understanding entered into
between the Royal Canadian Mounted Police (ldquoRCMPrdquo) and its ISU partners for both
Summits detailed that the RCMP was to be responsible for protecting Internationally
Protected Persons (ldquoIPPsrdquo) as well as the defined ldquocontrolled access zonesrdquo and the other
partners were to be responsible depending on whether it was the G8 or G20 for the areas
immediately adjacent to the controlled access zones referred to as the ldquointerdiction
zonesrdquo For the G8 Summit the Ontario Provincial Police (ldquoOPPrdquo) was to be responsible
for the interdiction zone For the G20 Summit the Toronto Police Service (ldquoTPSrdquo) was
responsible for the interdiction zone
It was TPSrsquos concern regarding its legal authority to establish and secure the interdiction
zone for the G20 Summit which resulted in the use of the PWPA
The TPS requested that the Ontario Government enact a regulation pursuant to the
PWPA4 which would designate the interdiction zone as a ldquopublic workrdquo and thereby give
the TPS the powers granted by the PWPA The regulation enacted pursuant to the PWPA
O Reg 23310 and the exercise by the police of their powers provided by this legislation
triggered this Review
4 Attached as Appendix 3 is a copy of the May 12 2010 letter
2
SECTION 2 THE PUBLIC WORKS PROTECTION ACT
A History of the Public Works Protection Act
The PWPA was enacted in 1939 It in addition to other legislation was passed during an
emergency session of the Ontario Legislative Assembly in response to Canadarsquos entry
into World War II and was considered important in supporting the war effort Lieutenant
Governor Albert Matthews in his throne speech outlined the context in which the
legislation was being passed5
We meet today under circumstances of the utmost gravity The possibility of war in which we are now engaged was fully realized and debated by you at the last session when you passed unanimously a resolution calling in such event for the complete mobilization of all our resources
Legislation calculated to give effect to the determination then expressed will be immediately submitted to you You will be asked to pass measures designed to increase agricultural and industrial production and for the protection of our vital public works and services (emphasis added)
Reports of the legislative debates held in 19396 indicate that protecting the provincersquos
hydroelectric facilities from sabotage was of particular concern The Ontario Government
had asked the Federal Government to provide members of the Canadian military to guard
these works The Federal Government refused and the PWPA was the provincial
response Concerns about restriction on civil liberties were raised in relation to another
bill that would have required permits for the holding of public meetings in public places
however no such concerns were raised in relation to the PWPA The only constitutional
issue raised in debate regarding the PWPA related to whether the Federal Government
was responsible for providing the necessary guards to protect public works as opposed to
requiring provinces to establish ldquoprivate armiesrdquo
5 Ontario Speech of the Throne 20th Parl 4th Sess (19 September 1939)6 Attached as Appendix 4 is a copy of the reports of the legislative debates Note This is the best available copy
3
The PWPA has undergone only minor amendments since 1939 Shortly after it was
enacted two Orders in Council were passed designating areas around the Canadian
General Electric Company Limited and The Canadian Car and Foundry Company as
ldquopublic worksrdquo In 1950 a provision regarding the recovery of certain fines was deleted
In 1960 the provision regarding the appointment of guards was moved from near the end
of the PWPA to closer to the beginning In 1972 the PWPA was amended to reassign
certain responsibilities from the Attorney General to the Solicitor General It was
amended again in 1989 to increase the fine for an offence under the PWPA from $100 to
$500 There have also been some other minor changes of wording since 1939
B Current Uses of the Public Works Protection Act
Although there is legislation in other provinces that defines ldquopublic worksrdquo for other
purposes there is no jurisdiction in Canada which has legislation similar in nature to the
PWPA
As the PWPA was enacted in 1939 as an emergency wartime statute it is perhaps not
surprising that it is relied upon today in only limited circumstances Prior to the G20 the
PWPA had only been relied upon to conduct searches at courthouses in the context of
providing courthouse security This use of the PWPA was upheld by the courts7 In
addition since September 2001 the PWPA has been used by Ontario Power Generation
(ldquoOPGrdquo) to empower its guards to secure its nuclear and non-nuclear power generating
facilities
7 See for example R v Campanella [2002] OJ No 5104 (SCJ) affrsquod [2005] OJ No 1345 (CA) and R v SS [2005] OJ No 5002 (SCJ)
4
C Outline of the Public Works Protection Act
Given the fact that the PWPA is a short statute I am reproducing it here in its entirety for
ease of reference
The Public Works Protection Act
Definitions 1 In this Act
ldquoguardrdquo means a guard appointed under this Act (ldquogardienrdquo)
ldquohighwayrdquo means a common or public highway or a part thereof and includes any street bridge and any other structure incidental thereto and any part thereof (ldquovoie publiquerdquo)
ldquopublic workrdquo includes
(a) any railway canal highway bridge power works including all property used for the generation transformation transmission distribution or supply of hydraulic or electrical power gas works water works public utility or other work owned operated or carried on by the Government of Ontario or by any board or commission thereof or by any municipal corporation public utility commission or by private enterprises
(b) any provincial and any municipal public building and (c) any other building place or work designated a public work by the Lieutenant
Governor in Council (ldquoouvrage publicrdquo) RSO 1990 c P55 s 1
Guards appointment 2(1)For the purpose of protecting a public work guards may be appointed by (a) the Solicitor General
(b) the Commissioner of the Ontario Provincial Police Force (c) any inspector of the Ontario Provincial Police Force
(d) the head or deputy head of the municipal council or the chief of police of the municipality in which the public work is located or the person acting in the place or stead of the head or deputy head
(e) the chair or other person who is the head of a board commission or other body owning or having charge of the public work or the person acting in the place or stead of the chair or other person
Powers of guard (2)Every person appointed as a guard under this section has for the purposes of this
Act the powers of a peace officer
5
Duties of guard (3)Subject to the regulations and to any special direction of the Solicitor General or
the Commissioner of the Ontario Provincial Police Force every guard shall obey all directions of the person appointing him or her any inspector of the Ontario Provincial Police Force the chief of police of the municipality in which is located the public work that he or she is protecting and the person who is in charge of the protecting of the public work
Breach of duty of guard (4)Every guard who (a) neglects or refuses to obey a direction that he or she is required to obey under
subsection (3) (b) fails in any manner to carry out his or her duties as guard
(c) leaves the location to which he or she is assigned as guard or ceases to act as guard without leave of any of the persons mentioned in subsection (3) or
(d) otherwise conducts himself or herself in a manner not consistent with his or her duties as guard
is guilty of an offence and on conviction is liable to a fine of not more than $500 or to imprisonment for a term of not more than two months or to both RSO 1990 c P55 s 2
Powers of guard or peace officer 3A guard or peace officer (a) may require any person entering or attempting to enter any public work or any
approach thereto to furnish his or her name and address to identify himself or herself and to state the purpose for which he or she desires to enter the public work in writing or otherwise
(b) may search without warrant any person entering or attempting to enter a public work or a vehicle in the charge or under the control of any such person or which has recently been or is suspected of having been in the charge or under the control of any such person or in which any such person is a passenger and
(c) may refuse permission to any person to enter a public work and use such force as is necessary to prevent any such person from so entering RSO 1990 c P55 s 3
Statement under oath to be conclusive evidence 4For the purposes of this Act the statement under oath of an officer or employee
of the government board commission municipal or other corporation or other person owning operating or having control of a public work as to the boundaries of the public work is conclusive evidence thereof RSO 1990 c P55 s 4
Refusal to obey guard etc 5(1)Every person who neglects or refuses to comply with a request or direction
made under this Act by a guard or peace officer and every person found upon a public
6
work or any approach thereto without lawful authority the proof whereof lies on him or her is guilty of an offence and on conviction is liable to a fine of not more than $500 or to imprisonment for a term of not more than two months or to both
Arrest (2)A guard or peace officer may arrest without warrant any person who neglects
or refuses to comply with a request or direction of a guard or peace officer or who is found upon or attempting to enter a public work without lawful authority RSO 1990 c P55 s 5
Regulations 6The Lieutenant Governor in Council may make regulations
(a) providing for the organization co-ordination supervision discipline and control of guards
(b) defining the areas that constitute approaches to public works either generally or with regard to a particular public work
(c) respecting any matter necessary or advisable to carry out effectively the intent and purpose of this Act RSO 1990 c P55 s 6
1 Discussion of Key Sections
(a) Definition of ldquoPublic Workrdquo
Section 1 defines ldquopublic workrdquo very broadly There are at least three classes of public
works The first class includes certain transportation infrastructure (ldquorailway canal
highway bridgerdquo) energy infrastructure (ldquopower works including all property used for
the generation transformation transmission distribution or supply of hydraulic or
electrical power gas worksrdquo) other public utilities (ldquowater works public utilityrdquo) and
other ldquoworksrdquo generally (ldquoor other workrdquo) This first class of public works may be
publicly or privately owned (ldquoowned operated or carried on by the Government of
Ontario or by any board or commission thereof or by any municipal corporation public
utility commission or by private enterprisesrdquo)
The second class of defined ldquopublic worksrdquo includes all provincial and municipal
buildings ldquoPublic buildingrdquo is not defined It would appear to clearly include buildings
7
such as the Legislative Assembly courthouses and city halls and likely includes
provincially or municipally owned buildings used for governmental purposes It would
also seem to include provincially or municipally owned buildings used for other
purposes such as libraries for example
The third class of ldquopublic worksrdquo includes any other building place or work designated
as a public work by the Lieutenant Governor in Council The word ldquoplacerdquo would appear
to be a very broad term that could include a public park for example The area
designated by O Reg 23310 fell into this class of ldquopublic workrdquo
(b) Appointment and Powers of Guards and Peace Officers
Section 2 of the PWPA provides for the appointment of ldquoguardsrdquo the powers and duties
of peace officers and guards and the penalties for any breach of duty by these peace
officers and guards The PWPA provides that anyone who is a head of a board
commission or other body having charge over a public work can appoint a guard This is
very broad and arguably allows for the appointment of a private army by someone
ldquohaving charge ofrdquo a public work whoever that may be Pursuant to s 2(2) the ldquoguardsrdquo
have the same powers as a ldquopeace officerrdquo
Section 3 sets out the powers a guard or peace officer acquire pursuant to the PWPA
including that a guard may require people entering or approaching a public work to
identify themselves and to state the purpose for which they desire to enter the public
work In addition the guard or peace officer may search without warrant any person or
vehicle entering or attempting to enter a public work The guard or peace officer can
8
refuse to permit a person to enter a public work and can use as much force as necessary in
this endeavour
(c) Boundaries of Public Work
Section 4 provides that a statement under oath by an officer or employee of the person or
entity operating or having control of a public work regarding the boundaries of the public
work serves as conclusive evidence with respect to the boundaries
(d) Offence Power of Arrest
Section 5 provides that any person who neglects or refuses to comply with a request or
direction made by a guard or peace officer is guilty of an offence In addition a person
who enters a public work or an approach to a public work without lawful authority is
guilty of an offence A person found guilty of an offence is liable to a fine of not more
than $500 andor imprisonment of not more than two months A guard or peace officer
has the power to arrest without warrant any person who refuses to comply with a request
or direction of a guard or peace officer and who enters or attempts to enter a public work
without lawful authority
(e) Regulations
Section 6(b) provides that the Lieutenant Governor in Council may define the areas that
constitute approaches to public works while s 6(c) permits regulations to be made
regarding any matter necessary to carry out the intent and purpose of the PWPA
D Events Leading to Passage of O Reg 23310
There was no apparent reference to the possible use of the PWPA until fairly late in the
planning process for the security for the G20 Summit The Province of Ontario originally
9
attempted to obtain support for its security measures through reliance on a federal statute
the Foreign Missions and International Organizations Act (ldquoFMIOArdquo) which provides
that the RCMP can take ldquoappropriate measuresrdquo to ensure the proper functioning of an
intergovernmental conference ldquoin a manner that is reasonable in the circumstancesrdquo8
On May 7 2010 John Burke Deputy Minister of Community Safety and Correctional
Services of Ontario wrote to William Baker Deputy Minister of Public Safety Canada9
stating that security would be enhanced by the existence of an agreement pursuant to s
101(4) of the FMIOA which provides that the Federal Minister of Public Safety may
enter into arrangements with the government of a province concerning the responsibilities
of members of the RCMP and provincial municipal police forces with respect to
ensuring security for the proper functioning of a conference
On June 11 2010 the Provincial Deputy Minister received a reply10 from the Federal
Deputy Minister indicating that such an agreement would not be required for the
Summits since ldquothe current suite of powers and authorities that peace officers possess at
common law or by virtue of any other federal or provincial Act or regulation were
sufficient for the G8 and G20 Summitsrdquo
The Federal Deputy Minister was clear that in his view the police had sufficient authority
at common law and in statute to secure these conferences Similarly the OPP were of the
view that it was not necessary for the police forces to have any additional police powers
8 SC 1991 c 41 s 101(2) Attached as Appendix 5 is a copy of selected sections of the FMIOA 9 Attached as Appendix 6 is a copy of the May 7 2010 letter10 Attached as Appendix 7 is a copy of the letter received on June 11 2010
10
other than those already conferred by virtue of common law and statute (excluding the
PWPA) in order to secure the interdiction zones for the Summits
On May 12 2010 Chief William Blair of the TPS wrote to the Honourable Rick
Bartolucci Minister of Community Safety and Correctional Services11 stating that a
ldquocornerstonerdquo of the TPS security plan for the G20 Summit would be the establishment of
a security perimeter in an area around the Metro Toronto Convention Centre The
purpose of this security perimeter as explained in the letter was to ldquoensure the safety and
security of those attending the Summit the Summit site itself and people and property
within the area close to the Summit siterdquo Chief Blair indicated that the TPS would rely
upon the authority granted to it pursuant to the common law and if certain conditions are
met the FMIOA12 to establish and control the security perimeter However he believed
that the provisions of the PWPA ldquowould also offer legal support for the extraordinary
security measuresrdquo he believed would be necessary Chief Blair therefore requested ldquothe
Lieutenant Governor in Council to designate the area of or highways within the intended
security perimeter as a public work for the period from June 21 2010 through the end of
the Summit on June 27 2010rdquo A detailed description of the area requested to be
designated as a public work was provided to Minister Bartolucci as well as an aerial
photograph of the area
I am not aware that any organization publicly questioned the inherent police power to
erect fences defining the interdiction zone The Canadian Civil Liberties Association
11 See Appendix 312 This probably is in reference to s 101(4) of the FMIOA which provides the authority for the Minister of Public Safety and Emergency Preparedness to enter into arrangements with the government of a province concerning the responsibilities of members of the RCMP and members of the provincial and municipal police forces with respect to ensuring the security for the proper functioning of an intergovernmental conference
11
(ldquoCCLArdquo) published a document entitled ldquoProtecting civil liberties and human rights at
the G20 statement of concernsrdquo on May 21 201013 In this document the CCLA
expressed concern with the size of the security perimeter ldquoParticularly where there is a
primary fence to ensure safety around conference venues and delegate hotels any further
restrictions on mobility or protest must be fully and carefully justifiedrdquo14 However the
CCLA supported ldquothe overall goal of ensuring that the G20 is conducted in a manner that
is safe for delegates protesters and Toronto residents in generalrdquo15 and noted the
RCMPrsquos authority under the FMIOA There was no doubt expressed by the CCLA
concerning the power of police to erect security fences
By letter dated June 15 201016 Minister Bartolucci wrote to Chief Blair acknowledging
the request and stating in part
I agree that there are various sources of legal authority to support the security perimeter I also recognize the desirability of having additional sources of legal authority to ensure clarity regarding the ability of the Toronto Police Service to take the steps that it will be taking Accordingly I am pleased to inform you that a regulation has been made under the PWPA in response to your request
The Minister informed Chief Blair that O Reg 23310 had been filed with the Registrar
of Regulations and would come into force on June 21 2010 and would be revoked as of
June 28 2010 The area requested by Chief Blair to be designated as a ldquopublic workrdquo
was so designated in O Reg 23310
13 Canadian Civil Liberties Association Protecting civil liberties and human rights at the G20 statement of concerns May 21 2010 online Canadian Civil Liberties Association lthttpcclaorgwordpresswp-contentuploads201005G20-CCLA-Statement-of-Concernspdfgt14 Ibid p 415 Ibid p 316 Attached as Appendix 8 is a copy of the June 15 2010 letter
12
Four days earlier on June 11 2010 Mike McDonell the Assistant Commissioner of the
RCMP sent a letter to Chief Blair17 containing a thorough review of the statutory sources
of the RCMPrsquos duties and powers to secure intergovernmental conferences Assistant
Commissioner McDonell outlined the police authority to fully secure the G8 and G20
Summits
More specifically in relation to the Summits the RCMP will be taking measures to fulfill duties related to the protection of Internationally Protected Persons (IPPrsquos) that befall police in general and the RCMP in specific The official visit of the head of state or high ranking dignitary of a foreign country is an event that frequently engenders a real or apprehended threat to the preservation of peace which demands the adoption of proper and reasonable security measures in and by the host country
Furthermore Canada is a signatory of the United Nations Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons Including Diplomatic Agents In that regard Canada has specifically adopted laws requiring peace officers to protect IPPs as defined in section 2 of the Criminal Code in accordance with its international obligationshellip
Legal authorities also permit the RCMP to collaborate with other police forces such as the OPP in the fulfillment of its duties including in relation to securing the perimeter Such collaboration is essential in light of concurrent mandates of policing partners particularly in relation to the legal duties to preserve the peace and protect life and property
E O Reg 23310
On June 2 2010 Cabinetrsquos Legislation and Regulations Committee passed O Reg
23310 It was signed by the Lieutenant Governor on June 3 2010 and published on June
16 2010 on e-Laws a website maintained by the Government of Ontario not frequently
accessed by the public This website provides access to official copies of Ontariorsquos
statutes and regulations O Reg 23310 came into force on June 21 2010 and was
17 Attached as Appendix 9 is a copy of the June 11 2010 letter
13
revoked on June 28 2010 It was not published in The Ontario Gazette18 until July 3
2010 after it had already been revoked Section 23(2) of Ontariorsquos Legislation Act
200619 provides that a regulation is not effective against a person before the earliest of
when the person has actual notice of it the last instant on the day on which it is published
on the e-Laws website or the last instant of the day on which it is published in the print
version of The Ontario Gazette As a result though the technical requirements for
providing notice of O Reg 23310 were met I have concerns whether adequate notice
was given to the public especially in light of the fact that the regulation was not
published in The Ontario Gazette until it had already been revoked
The regulation set out the area where the security fence was to be erected and designated
that area as a ldquopublic workrdquo which then called into play all the powers provided by the
PWPA
ONTARIO REGULATION 23310
made under the
PUBLIC WORKS PROTECTION ACT
Made June 2 2010Filed June 14 2010
Published on e-Laws June 16 2010Printed in The Ontario Gazette July 3 2010
DESIGNATION OF PUBLIC WORKS
Designation 1 The following are designated as public works for the purposes of the Act 1 Everything described in clause (a) of the definition of ldquopublic workrdquo in section
1 of the Act that is located in the area described in Schedule 1 including without limitation and for greater certainty every sidewalk in that area
2 The places described in paragraphs 1 2 and 3 of Schedule 2
18 The Ontario Gazette contains Ontariorsquos legal notices and regulations19 SO 2006 c 21 Sched F
14
Revocation 2 This Regulation is revoked on June 28 2010
Commencement 3 This Regulation comes into force on the later of June 21 2010 and the day
it is filed SCHEDULE 1
AREA REFERRED TO IN PARAGRAPH 1 OF SECTION 1
The area in the City of Toronto lying within a line drawn as follows
Beginning at the curb at the southeast corner of Blue Jays Way and Front Street West then north to the centre of Front Street West then east along the centre of Front Street West to the east curb of Windsor Street then north along the east curb of Windsor Street to the centre of Wellington Street then east along the centre of Wellington Street to the centre of Bay Street then south along the centre of Bay Street to a point directly opposite the north wall of Union Station then west along the exterior of the north wall of Union Station to the centre of York Street then south along the centre of York Street continuing east of the abutments under the railway overpass and continuing south along the centre of York Street to the centre of Bremner Boulevard then west along the centre of Bremner Boulevard to the east curb of Lower Simcoe Street then south along the east curb of Lower Simcoe Street to the north curb of Lake Shore Boulevard West then west along the north curb of Lake Shore Boulevard West to the south end of the walkway that is located immediately west of the John Street Pumping Station and runs between Lake Shore Boulevard West and the bus parking lot of the Rogers Centre then north along the west edge of that walkway to the bus parking lot of the Rogers Centre then west along the south edge of the bus parking lot of the Rogers Centre to the west edge of the driveway running between the parking lot and Bremner Boulevard then north along the west edge of that driveway to the north curb of Bremner Boulevard then west along the north curb of Bremner Boulevard to the east curb of Navy Wharf Court then north along the east curb of Navy Wharf Court to the southwest point of the building known as 73 Navy Wharf Court then east along the exterior of the south wall of that building then north along the exterior of the east wall of that building to the curb of Blue Jays Way then north along the east curb of Blue Jays Way to the curb at the southeast corner of Blue Jays Way and Front Street West
SCHEDULE 2DESIGNATED PLACES REFERRED TO IN PARAGRAPH 2 OF SECTION 1
1 The area within the area described in Schedule 1 that is within five metres of a line drawn as follows Beginning at the south end of the walkway that is located immediately west of the John Street Pumping Station and runs between Lake Shore Boulevard West and the bus parking lot of the Rogers Centre then north along the west edge of that walkway to the bus parking lot of the Rogers Centre then west along the south edge of the bus parking lot of the Rogers Centre to the west edge of the driveway running between the parking lot and Bremner
15
Boulevard then north along the west edge of that driveway and ending at Bremner Boulevard
2 The area within the area described in Schedule 1 that is within five metres of a line drawn as follows
Beginning at the southwest point of the building known as 73 Navy Wharf Court then east along the exterior of the south wall of that building then north along the exterior of the east wall of that building and ending at the curb of Blue Jays Way
3 The below-grade driveway located between Union Station and Front Street West and running between Bay Street and York Street in the City of Toronto
F Information Given to Public Regarding Security Protocol
Attempts were made to inform the public about the security measures that would be in
place leading up to and throughout the G20 The City of Toronto in consultation with
the ISU produced an information article20 and flyers21 No mention is made in the article
or flyers of the PWPA or O Reg 23310 and the powers given to the police The City of
Toronto also prepared an advertisement which appeared in local newspapers22 The
original version of the advertisement made no reference to the fact that people would be
subject to a search when attempting to access the security perimeter although reference
was made to the requirement to show identification and to have a valid purpose for
entering the restricted area A later version of the advertisement included additional text
advising that anyone requesting access to the security perimeter may be subject to a
search However just as with the article and flyers no specific mention was made of the
PWPA or O Reg 23310
20 A million copies of the newsletter Our Toronto which contained an article entitled ldquoWhat to expect during the G20 ndash June 26 amp 27 2010rdquo were delivered to homes in the City of Toronto21 Approximately 10000 flyers were sent to homes and businesses within the affected area The flyercontained general information about security and the anticipated effects on traffic22 The advertisement appeared in the Toronto Star Toronto Sun and Metroland community papers
16
In the days leading up to and throughout the G20 Summit there was apparently a
misunderstanding on the part of the police regarding a purported ldquofive-metre rulerdquo This
confusion likely emanated from the ldquofive-metresrdquo referenced in Schedule 2 of O Reg
23310 However the purpose of Schedule 2 was to designate as ldquopublic work(s)rdquo three
specific private property locations on which the security fence was to be erected that were
not ldquopublic worksrdquo The remainder of the fence was on public sidewalks and streets
which are ldquopublic worksrdquo To ensure that the fence was located on a ldquopublic workrdquo the
drafters designated the area within five metres of the security fence in these three
locations as a ldquopublic workrdquo23 Unfortunately the wording of Schedule 2 was very
cumbersome and the relationship between the area defined in Schedule 1 and the five-
metre reference in Schedule 2 was difficult to understand
Because of this confusion unfortunately the message was conveyed that the regulation
provided for a five-metres zone outside the entire security fence and that therefore the
PWPA applied to this entire area24 The media reported during the G20 summit that the
police had ldquosweepingrdquo powers pursuant to the PWPA within five-metres outside of the
exterior security fence25 O Reg 23310 did not provide the police such authority
23 Attached as Appendix 10 is a copy of a map showing the three specific areas designated in Schedule 2 of O Reg 2331024 Jennifer Yang ldquoJust being near the G20 security zone can get you arrestedrdquo Toronto Star (25 June 2010) online thestarcom lthttpwwwthestarcomnewsgtatorontog20summitarticle828498--just-being-near-the-g20-security-zone-can-get-you-arrestedgt25 David Rider et al ldquoDalton McGuinty Bill Blair defend quiet boost in arrest powersrdquo Toronto Star (26 June 2010) online thestarcom lthttpwwwthestarcomnewsgtatorontog20summitarticle828974--dalton-mcguinty-bill-blair-defend-quiet-boost-in-arrest-powersgt
17
SECTION 3 COMMENTARY
A Public Policy Considerations
There are some overarching public policy considerations which affect the issues I have
been asked to address in the Terms of Reference
As stated earlier the legislation was the product of emergency World War II concerns
related to the possibility of enemy sabotage of important infrastructures The legislative
debates in September of 1939 were particularly concerned with the provincersquos
hydroelectric facilities However notwithstanding these apparently specific concerns
when drafted the definition of ldquopublic workrdquo is extraordinarily broad and from a policy
standpoint raises questions of overbreadth especially given the ability to designate
almost anything a public work In a mere definition section s 1 of the legislation allows
the Lieutenant Governor in Council to designate ldquoany other building place or workrdquo as a
ldquopublic workrdquo However taken to its logical conclusion an entire city or more could be
designated as a ldquopublic workrdquo The definition of ldquopublic workrdquo includes ldquoany provincial
and any municipal public buildingrdquo but ldquopublic buildingrdquo is not further defined thereby
creating an element of uncertainty as to the specific provincial and municipal buildings
captured by this definition While perhaps extreme measures in times of war require
flexibility in all other circumstances legislation of this nature requires limitations and a
more specialized approach
The expression ldquoprivate armyrdquo was used in the Ontario legislative debate in 1939
Theoretically at least private armies could be created through the use of the ldquoguardrdquo
appointing authority by the many individuals who are authorized to appoint guards
pursuant to the PWPA This authority was apparently in response to the Federal
18
Governmentrsquos refusal to assume through the Defence Department the responsibility of
guarding utilities and industries essential to the war effort While such a result might not
have been contemplated in a parliamentary democracy it is clearly unwise to leave such
a possibility open
Section 3 of the PWPA provides in part that a guard or a peace officer
(a) may require any person entering or attempting to enter any public work or any approach thereto to furnish his or her name and addresshellipand to state the purpose for which he or she desires to enter the public work in writing or otherwise
The primary problem I see with this section is the vagueness of the term ldquoapproach
theretordquo An approach could begin at a considerable distance from the public work
Section 6(b) also provides for the making of regulations ldquodefining the areas that
constitute approaches to public works either generally or with regard to a particular
public workrdquo
In addition s 3(b) of the PWPA provides that a guard or peace officer ldquomay search
without warrant any person entering or attempting to enter a public workrdquo This section
does not permit any person to abandon any attempt to enter a public work in order to
avoid being subjected to a warrantless search Such conduct is adopted by persons who
decide not to enter a secured courthouse in order to avoid a warrantless search
Section 4 provides that for the purposes of the PWPA the statement under oath made by
persons engaged in the operation of a public work ldquoas to the boundaries of the public
work is conclusive evidence thereofrdquo Section 4 should be considered with s 5(1) which
provides that ldquoevery person found upon a public work or any approach thereto without
lawful authority the proof whereof lies on him or her is guilty of an offencehellip(emphasis
19
added)rdquo The provision in s 4 that ldquothe statement under oathhellipis conclusive evidence
thereofrdquo appears to remove from a courtrsquos consideration what could be a legitimate
dispute as to the boundaries of a public work or the approach thereto Furthermore the
apparent reversal of the onus of proof regarding lawful authority to be found in a public
work or an approach found in s 5 is also troublesome from a policy and legal point of
view
Accordingly if utilized to the extreme many government officials could appoint many
private armies to restrict access to many (in fact any) public places where the mere
statement under oath by the private guard of the boundaries of the areas under restricted
access is conclusive proof thereof Such potential for abuse is beyond troubling to say
the least
B Review of other Public Reports
As is evident from the foregoing discussion many issues arise regarding the operation of
the PWPA in todayrsquos context These considerations and others also formed the basis of
concerns raised in public reports which I was asked to review
1 Reports of the Canadian Civil Liberties Association
The CCLA preliminary G20 report26 dealt with most of the police related events that
occurred in Toronto during the G20 conference during the weekend of June 26th and 27th
2010 I will only make reference to a few portions of the report that deal with the Terms
of Reference
26 Canadian Civil Liberties Association A Breach of the Peace ndash A Preliminary Report of Observations During the 2010 G20 Summit June 29 2010 online Canadian Civil Liberties Association lthttpcclaorgwordpresswp-contentuploads201006CCLA-Report-A-Breach-of-the-Peace-Preliminary-report-updated-July-8pdfgt
20
The report of the CCLA called for the repeal or significant amendment to the PWPA ldquoto
meet basic constitutional standardsrdquo27 The CCLA ldquosuggests that the broad police powers
granted under the Act are inconsistent with current Charter requirementsrdquo28
I agree with the observation of the CCLA that the provisions of the PWPA led to a ldquolack
of clarity as to the scope of the search and seizure powersrdquo29 which created many
difficulties and conflicts that probably could have been avoided I would also certainly
agree with a conclusory comment in this preliminary report that ldquoit is the duty of police
officers to act with fairness and equanimity toward all citizens in accordance with the law
of the country The presumption of innocence and the protection against arbitrary arrests
and detention are at the core of a commitment to justicerdquo30
The CCLA in partnership with the National Union of Public Employees organized
public hearings for two days in Toronto and one day in Montreal in November of 2010
which they referred to as a Citizens Inquiry The Citizens Inquiry heard from 63 members
of the public who had witnessed policing incidents or had been detained Several lawyers
and academics also participated in the hearing and offered commentary on the events of
the G20 from a legal or policing perspective including issues related to the PWPA A
report of the hearings titled ldquoG20 Toronto Breach of the Peace Public Hearingsrdquo was
released on February 28 2011 which also referred to the PWPA31
27 Ibid p 2228 Ibid p 929 Ibid p 1230 Ibid p 2131 Canadian Civil Liberties Association and the National Union of Public and General Employees G20 Toronto Breach of the Peace Public Hearings February 2011 online Canadian Civil Liberties Association lthttpcclaorgwordpresswp-contentuploads201102Breach-of-the-Peace-Final-Reportpdfgt
21
2 The Ontario Ombudsman Report
The Ontario Ombudsman commenced an investigation after receiving complaints relating
to a variety of issues concerning the G20 The Marin Report recognized that ldquotypically
international summits attract protests and protests can turn violent and even deadlyrdquo32
The report therefore does not quarrel with the requirement that a high level of security is
required for such events
The report in my view accurately describes the PWPA as ldquounique in Canada in terms of
the breadth of its reach and the powers it confershellipno other Canadian statute defining
lsquopublic worksrsquo contains provisions similar to those found in Ontariorsquos Actrdquo33
32 Ontario Ombudsman report Investigation into The Ministry of Community Safety and Correctional Servicesrsquo Conduct in Relation to Ontario Regulation 23310 under the Public Works Protection Act ldquoCaught in the Actrdquo by Andreacute Marin (Toronto Ombudsman of Ontario December 2010) online Ombudsman of Ontario lthttpwwwombudsmanoncamedia157555g20final1-enpdfgt (ldquoMarin Reportrdquo) at para 733 Ibid at para 97
22
SECTION 4 POWERS OF THE POLICE
Pursuant to the Terms of Reference I have been asked to consider for future purposes
whether the powers given to peace officers and guards under the PWPA are necessary to
protect public works secure intergovernmental conferences or for any other purposes
To answer that question it is necessary to assess whether the current common law and
statutory regime provide the police with sufficient powers to perform these vital services
A Common Law Powers and Powers Pursuant to Police Services Acts
The police have extensive common law powers that can be used in protecting and
securing intergovernmental conferences and in protecting public works It is necessary to
examine those powers in order to assess whether and what if any additional powers are
needed such as those provided by the PWPA
Of particular assistance in this regard is R v Knowlton34 where the Supreme Court of
Canada considered whether the powers possessed by peace officers at common law and
statute in securing an area for the protection of a foreign dignitary were lawful The
Supreme Court of Canada held that in order for the exercise of peace officer powers to be
lawful the powers must satisfy the two step test set out in R v Waterfield35 First the
power must be in furtherance of a lawful duty Traditional common law peace officer
duties include the preservation of the peace and the prevention of crime These common
law police duties amongst others are now statutorily enshrined in s 42(1) of Ontariorsquos
Police Services Act (and other provincial police services acts)36 The second part of the
test requires an evaluation of whether the conduct of the peace officer was ldquojustifiedrdquo To
34 [1974] SCR 443 [ldquoKnowltonrdquo]35 See for example R v Dedman [1985] 2 SCR 236 RSO 1990 c P15
23
do so one applies the standard of what is reasonably necessary in light of the totality of
the circumstances In evaluating whether the conduct of the peace officer was justified it
is important to consider ldquothe duty being performed the extent to which some interference
with individual liberty is necessary in the performance of that duty the importance of the
performance of the duty to the public good the nature of the liberty being interfered with
and the nature and extent of the interferencerdquo37
In Knowlton police in Edmonton cordoned off an area as part of the security
arrangements for the visit of Premier Kosygin of the USSR Premier Kosygin had been
assaulted in Ottawa a few days prior to his visit to Edmonton Knowlton entered the
secured area questioning the power of the peace officer to prevent his entry He was
arrested without a warrant and charged with obstructing a peace officer in the execution
of his duties Knowlton argued that the peace officer did not have the power to prevent
his entry and was not acting in the execution of his duty
The Supreme Court of Canada emphasized the heightened importance of security when
there are visiting foreign dignitaries38
It is notorious and of common knowledge that the official visit of the head of state or high rank dignitary of a foreign country friendly as either may be is an event that frequently engenders a real or apprehended threat to the preservation of peace and that calls therefore for the adoption of proper and reasonable security measures in and by the host countryhellipThe restriction of the right of free access of the public to public streetshellipwas one of the steps--not an unusual one--which police authorities considered and adopted as necessary for the attainment of the purpose aforesaid In my opinion such conduct of the police was clearly falling within the general scope of the duties imposed upon them
37 R v Mann [2004] 3 SCR 59 at 7938 Supra note 34 at 447-448
24
In addressing the first part of the Waterfield test the Court referenced provisions of the
Alberta Police Act and the Criminal Code and concluded that the conduct of the peace
officers fell within the general scope of the duties imposed upon them for example
preservation of the peace and prevention of crime39
According to the principles which for the preservation of peace and prevention of crime underlie the provisions of s 30 amongst others of the Criminal Code these official authorities were not only entitled but in duty bound as peace officers to prevent a renewal of a like criminal assault on the person of Premier Kosygin during his official visit in Canada In this respect they had a specific and binding obligation to take proper and reasonable steps The restriction of the right of free access of the public to public streets at the strategic point mentioned above was one of the steps--not an unusual one--which police authorities considered and adopted as necessary for the attainment of the purpose aforesaid In my opinion such conduct of the police was clearly falling within the general scope of the duties imposed upon them
In analyzing the second step of the Waterfield test the Court concluded that there was no
evidence indicating the police officers resorted to an unjustifiable use of the powers
associated with the duties imposed on them
The Court in Knowlton recognized broad police powers to cordon off areas as part of the
security arrangements involving internationally protected persons In addition the Court
found that the warrantless arrest in that case was not an unjustifiable or unreasonable use
of powers associated with the police duties to preserve the peace order public safety and
to enforce the law and prevent crime Finally the Court found that peace officers were
duty bound ldquoto prevent a renewal of a like criminal assault on the person of Premier
Kosygin during his official visit in Canadardquo40 Furthermore it stated the closing of public
39 Ibid 40 Ibid at 447
25
streets ldquowas one of the steps -- not an unusual one -- which police authorities considered
and adopted as necessaryrdquo41
The Knowlton decision clearly acknowledged that the police had the duty and authority to
establish and enforce a secured area to protect a foreign dignitary In order to carry out
these duties the police may do what is reasonably necessary in light of the totality of the
circumstances
Though Knowlton was decided prior to the enactment of the Canadian Charter of Rights
and Freedoms (the ldquoCharterrdquo) this does not in my view affect the clear statement by the
Supreme Court of Canada regarding the duty of the police under the common law and the
Alberta Police Act to provide this security While the facts of Knowlton were quite
compelling in relation to the obvious need to provide adequate security for Premier
Kosygin the decision is equally important authority regarding the general responsibilities
of the police at common law and statute in relation to the preservation of the peace
B Other Statutory Powers
1 Criminal Code
Some specific powers are provided to peace officers pursuant to the Criminal Code42
Section 31 gives peace officers the power to arrest an individual for breach of the peace
Peace officers can arrest those committing the breach of the peace or those who on
reasonable grounds heshe believe are about to join in or renew the breach of the peace
Peace officers also have powers at their disposal under ss 63-69 of the Criminal Code to
deal with the offences of unlawful assembly and riots
41 Ibid at 447-448 42 RSC 1985 c C-46
26
2 Trespass to Property Act
The Ontario Trespass to Property Act43 is a potential source of police power to arrest
without warrant those who are unlawfully on certain premises or who were recently
unlawfully on the premises and refuse to give their name and address44 This statute
deals with illegal entry into both private and public property by creating the offence of
trespass for those who without the express permission of the occupier enter on to
premises or engage in an activity on the premises when it is prohibited by the statute45
Though this statute is primarily used by private property owners to keep unwanted people
off of their property it has also been invoked by the Speaker of the House46 and by the
City of Toronto47 It must be noted however that using the Trespass to Property Act in
relation to removing individuals from ldquopublicrdquo places may raise Charter issues48
3 Foreign Missions and International Organizations Act
The RCMP as peace officers have the general duty to preserve the peace and prevent
crime and offences as set out in s 18 of the Royal Canadian Mounted Police Act49
Additional duties found in s 17 of the Royal Canadian Mounted Police Regulations
198850 include the protection of ldquointernationally protected personsrdquo as defined in s 2 of
the Criminal Code Internationally protected persons include heads of state and their
43 RSO 1990 c T2144 Ibid ss 9(1) 1045 Ibid s 2(1)46R v Behrens [2004] OJ No 5135 (CJ) The Court held that the issue of the trespass notices fell under the Speakerrsquos parliamentary privilege and were not reviewable even on the basis of a Charter argument47R v Semple [2004] OJ No 2137 (CJ)48 In R v Semple the defendants were charged under the Ontario Trespass to Property Act for entering the grounds of Toronto City Hall after being banned from doing so In the end the Court held that the defendantsrsquo peaceful entry onto the grounds was an expression as per s 2(b) of the Charter Torontorsquos notice under the Act infringed on this freedom and in these circumstances it could not be justified under s 1 of the Charter 49 RSC 1985 c R-1050 SOR88-361
27
family members The RCMPrsquos duty to protect internationally protected persons is also
found in s 6(1) of the Security Offences Act51
In addition Canada is a signatory of the United Nations Convention on the Prevention
and Punishment of Crimes against Internationally Protected Persons including
Diplomatic Agents52 This Convention provides that the Government of Canada must
protect visiting heads of state or government foreign ministers representatives or
officials of a state or any official or other agent of an international organization of an
intergovernmental character and the family members that accompany him or her The
RCMP has the responsibility to carry out these security measures
Pursuant to s 101(1) of the FMIOA ldquoThe Royal Canadian Mounted Police has the
primary responsibility to ensure the security for the proper functioning of any
intergovernmental conference in which two or more states participate that is attended by
persons granted privileges and immunities under this Act and to which an order made or
continued under this Act appliesrdquo
The powers to carry out this mandate are found in s 101(2) of the FMIOA ldquothe Royal
Canadian Mounted Police may take appropriate measures including controlling limiting
or prohibiting access to any area to the extent and in a manner that is reasonable in the
circumstancesrdquo It is noteworthy that the FMIOA has legislated the same powers
provided to the police under common law and statute
In order to trigger the RCMP powers described in s 101 the Governor in Council on the
51 RSC 1985 c S-752 UNGA Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons including Diplomatic Agents 20 February 1977 UN Doc I-15410
28
recommendation of the Minister of Foreign Affairs and pursuant to s 5 of the FMIOA
made the G8 Summit Privileges and Immunities Order 201053 on December 10 2009
This order was repealed and a subsequent order54 was made on January 13 2010 A
similar order55 for the G20 Summit was made on March 11 201056
Therefore during the G20 the RCMP had the specific statutory power to limit or
prohibit access to any area and to any extent as long as the measures were appropriate
and done in a manner that was reasonable in the circumstances ldquoThe RCMP may secure
the perimeter of the security zone on land with fencing and restrict access to this zone
through the use of checkpoints and other measuresrdquo57
Though not invoked during the G20 s 101(4) of the FMIOA provides that arrangements
can be entered into with a province concerning the responsibilities of members of the
RCMP and members of the provincial and municipal police forces with respect to
ensuring the security for the proper functioning of an intergovernmental conference No
information was provided to me as to why such an arrangement was not entered into for
the G20
These intergovernmental security provisions of the FMIOA were enacted just prior to the
G8 being held in Kananaskis Alberta in 2002 In light of violent protests at international
events and the 911 terrorist attacks in the United States the Federal Government
53 SOR2009-33654 SOR2010-1355 SOR2010-6256 Supra note 17 ldquoUpon such an Order being made the RCMP in co-operation and collaboration with other police forces becomes impressed with the primary responsibility of ensuring not only the protection of the IPPs but also ensuring lsquosecurity for the proper functioningrsquo of the intergovernmental conference To that end the FMIOA provides that the lsquoappropriate measures including controlling limiting or prohibiting access to any area to the extent and in a manner that is reasonable in the circumstancesrsquo may be takenrdquo57 Ibid
29
considered it timely ldquoto clarify in statute the present common law authority for police to
provide security and protection for high profile international eventsrdquo58 At such events it
was intended that ldquothe RCMP is the lead to make sure that security is providedrdquo59
Given that it was clearly the intention of the Federal Government to have the RCMP as
the lead police force at these international events consideration should be given to
expand the use of the FMIOA to cover all large scale international events such as the
Olympics the Pan American Games and international trade fairs as these events are
routinely attended by heads of state and senior government officials Most recently
Vancouver held the 2010 Olympic and Paralympic Winter Games60 Though federal and
municipal legislation were passed to assist in securing the Games expansion and
application of the FMIOA would have been a better approach The RCMP as the national
police force ought to be in charge pursuant to their authority under the FMIOA
4 Emergency Legislation
Through my consultations with the parties listed in Appendix 2 I heard that while we are
not in a time of war as in 1939 when the PWPA was enacted we live in an age of
international and local terrorism threats Our democratic society must be vigilant in
58 Canada House of Commons Debates 37th Parl 1st Sess No 93 (5 October 2001) at 100059 Canada House of Commons Standing Committee on Public Safety and National Security 40th Parl 3rd
Sess Evidence (25 October 2010)60 In anticipation of this event the Governor General in Council on the recommendation of the Minister of Transport pursuant to the Aeronautics Act (RSC 1985 c A-2) and the Canadian Air Transport Security Authority Act (SC 2002 c 9 s 2) passed the Vancouver 2010 Aviation Security Regulations (SOR2009-298) The purpose of the regulations was to enhance aviation security during the Games The Regulation provided for extra security and extra authorized means to conduct screenings In addition the Vancouver City Council passed the very lengthy By-law No 9962 known as the ldquoVancouver 2010 Olympic and Paralympic Winter Games By-Lawrdquo Specific security measures to be employed at a city live site (described thoroughly in a Schedule to the By-Law) that were enabled by this By-Law included The installation and monitoring of airport style and other security measures including magnetometers and X-ray machines the installation and monitoring of closed circuit television cameras the searching of any person who wished to enter on to a city live site and any bag luggage or other container carried by such person and the prohibiting of access to or removal from a city live site any person who refused to submit to a search
30
maintaining a proper level of security while recognizing that democratic values and
security issues can conflict where public order is at issue It is important to highlight that
provincial legislation exists dealing with both terrorism threats and emergency situations
I have been informed that federal and provincial counter-terrorism plans exist that
address preventing and responding to acts of terrorism
The Police Services Act regulations mandate police forces to establish procedures
consistent with federal and provincial counter-terrorism plans61 and to have policies with
respect to counter-terrorism62 In addition the Emergency Management and Civil
Protection Act allows for orders to be made in situations specifically designated an
ldquoemergencyrdquo63 by the Lieutenant Governor in Council or the Premier that regulate or
prohibit travel and movement to from or within any specified area64 Therefore the
PWPA is not needed to deal with these emergency situations as specific more recent
emergency legislation is in place for that very purpose
C Gaps in Canadian Police Powers
The Ministry of Community Safety and Correctional Services provided me with an
interesting article published in 2010 entitled ldquoThe Gap in Canadian Police Powers
61 Adequacy and Effectiveness of Police Services O Reg 399 s 2862 Ibid s 2963 Section 1 of the Emergency Management and Civil Protection Act defines an ldquoemergencyrdquo as ldquoemergencyrdquo means a situation or an impending situation that constitutes a danger of major proportions that could result in serious harm to persons or substantial damage to property and that is caused by the forces of nature a disease or other health risk an accident or an act whether intentional or otherwise (ldquosituation drsquourgencerdquo)64 RSO 1990 c E9 s 702(4)
31
Canada needs lsquoPublic Order Policingrsquo Legislationrdquo and co-authored by Wesley Pue and
Robert Diab65
This article was prompted by the debate over the cost nature and extent of security to be
employed at the Vancouver 2010 Winter Olympics The authors criticized the fact that
policing authorities in Canada ldquolack specific statutory authorization to take measures
commonly thought necessary to their missionrdquo66 These measures included security
fences in public areas designated protest areas restricted access to public space police
surveillance and searches without cause
The authors recognize that such powers may be necessary but note that ldquono legislature
has ever expressly conferred such powers on policing authorities outside the context of
international intergovernmental conferences Nor does the common law accord such
powers to state officials on its ownrdquo67 I respectfully disagree with this latter statement
It is my view the police have powers pursuant to the common law and statute as I have
discussed in the preceding section
The authors referred to R v Knowlton68 which I have previously discussed While the
authors give Knowlton a very narrow interpretation stating that ldquoits binding principle is a
good deal narrower than the words taken out of context might suggestrdquo69 I however am
of the view that the decision supports the proposition that police have a broad range of
65 Wesley Pue and Robert Diab ldquoThe Gap In Canadian Police Powers Canada Needs lsquoPublic Order Policingrsquo Legislationrdquo (2010) 28 Windsor Rev Legal Soc Issues 87 Wesley Pue is a professor of legal history at the University of British Columbia and Robert Diab is a PhD candidate at the UBC Faculty of Law66 Ibid p 8867 Ibid68 Supra note 3469 Supra note 65 p 92
32
responsibilities with deep historical roots in the common law and codified in statute a
position shared by the Federal Government when it introduced amendments to the
FMIOA The actions of the police in Knowlton were necessarily incidental to their
common law police duties and powers
The authors conclude that this ldquoauthority of police to create zones of exclusion either as
an incident of the general and ancient duties of constableshelliphas never been established in
the courtsrdquo70 I am of the view however that the role of the police in establishing
security zones relating to a crime a serious accident or other emergency is a routine and
well-accepted use of police powers pursuant to their common law and statutory duties I
am not suggesting that this common law authority permits the police to establish security
zones ldquofor the proper functioning of any intergovernmental conference in which two or
more states participaterdquo71 larger than necessary to fulfill their purpose The FMIOA as
amended in 2002 provides the RCMP with ldquoprimary responsibility to ensure the security
for the proper functioning of the intergovernmental conferencerdquo72 It is interesting
however that when the Federal Government was enacting this specific authority the
legislative debates indicated that the government was merely clarifying ldquoin statute the
present common law authority for police to provide security and protection for high
profile international eventsrdquo73
Security perimeters are routinely erected by police in the context of the commission of a
crime motor vehicle and other accidents as well as the Santa Claus parade and other
70 Ibid p 9671 Supra note 8 s 101(1)72 Ibid73 Supra note 58
33
parades It would in my view be quite impractical and unnecessary to legislate an
extensive code of police powers given their common law and statutory responsibilities to
generally maintain public order It is not advisable in my opinion to be prescriptive in
any way regarding what actions the police can take since they must assess what the
situation warrants while at the same time considering individual rights and freedoms
The details of any police response to an emergency must be tailored to the exigencies
related to the situation
The police clearly have common law and statutory authority to conduct warrantless
searches in specific situations (ldquoin exigent circumstancesrdquo)74 However when
warrantless searches must be carried out on a regular routine basis the police are acting
more like full time security guards and there should be specific statutory authority
provided to give such powers
I certainly accept the general proposition the authors assert that the mobility rights of
citizens should not be unreasonably or unfairly dealt with However one only need be
aware of the massive amount of construction taking place on the streets of Toronto as this
Report is being written to appreciate that it is not always reasonable to expect that ldquothe
rights of businesses homeowners and ordinary citizens to go about their routine
activities without interruptionrdquo75 will go unhindered While generally desirable it cannot
be legally guaranteed At the same time the authors do concede that ldquoimportant as they
74 Supra note 42 s 4871175 Supra note 65 p 89
34
are the rights of assembly movement and protest are not unqualified They can ndash and
should ndash be balanced against other important public needsrdquo76
In my view public policing at times requires innovation as it often benefits from
creative problem solving If police abuse their common law powers related to ldquopublic
order policingrdquo they are accountable to a multiplicity of authorities and the rule of law
most particularly the Charter The legal rights outlined in the Charter such as ldquothe
principles of fundamental justicerdquo77 security ldquoagainst unreasonable search and seizurerdquo78
and ldquothe right not to be arbitrarily detained or imprisonedrdquo79 are described very
generally However they were chosen deliberately as it was recognized that in each case
there is an inherent tension between imposing security measures and fundamental rights
and freedoms Determining which is paramount will be based on the facts of each case
76 Ibid p 9177 Canadian Charter of Rights and Freedoms s 7 Part I of the Constitution Act 1982 being Schedule B to the Canada Act 1982 (UK) 1982 c 1178 Ibid s 879 Ibid s 9
35
SECTION 5 LEGAL ANALYSIS OF THE PUBLIC WORKS PROTECTION ACT
A Legal Analysis of the Legislation
Many stakeholders have questioned the constitutional validity of the PWPA and O Reg
23310 The Ontario Ombudsman seriously questioned whether O Reg 23310 could
pass ldquoconstitutional musterrdquo80 The CCLA suggested that the broad police powers
granted under the PWPA were inconsistent with the Charter81
To the same effect were comments made by Premier Dalton McGuinty who described
the PWPA as ldquoan archaic law that was used to undermine Torontoniansrsquo civil rights
during the G20rdquo82 He elaborated83
The issue is whether itrsquos appropriate given our present-day values and given an old law which I am confident doesnrsquot strike the balance that you and I would want today in terms of public safety and individual freedom of expressionhellipWhen you start talking about civil rights individual freedoms yoursquore talking about those things that in fact define us as a free and democratic societyhellipItrsquos something that is real and meaningful and important to all of us
The Terms of Reference for this Review do not require that I conduct a constitutional
analysis of the PWPA I have however been asked to consider areas for reform and if
appropriate make specific recommendations for amendment or repeal This does require
that I therefore consider whether the legislation may be vulnerable to constitutional
challenge
Section 2(b) of the Charter guarantees everyone the fundamental freedom of expression
The definition of ldquoexpressionrdquo has been interpreted broadly ldquoActivity is expressive if it
80 Supra note 32 at para 23381 Supra note 26 p 982 Robert Benzie and Rob Ferguson ldquoMcGuinty shifts focus to fixing G20 lawrdquo Toronto Star (10 December 2010) online thestarcom lthttpwwwthestarcomnewscanadaarticle905436--mcguinty-shifts-focus-to-fixing-g20-lawgt 83 Ibid
36
attempts to convey meaningrdquo84 While freedom of expression is not absolute there is
very little that is not considered expression However expression that advocates violence
is not protected under s 2(b)85
The Supreme Court of Canada in Committee for the Commonwealth of Canada v
Canada held that s 2(b) ldquodoes not encompass the right to use any and all government
property for purposes of disseminating onersquos views on public matters but I have no doubt
that it does include the right to use for that purpose streets and parks which are dedicated
to the use of the public subject no doubt to reasonable regulation to ensure their
continued use for the purposes to which they are dedicatedrdquo86 It seems clear that
protesting in public streets is a form of expression protected by s 2(b) Protesting at an
intergovernmental conference is clearly expressive in nature
In challenges alleging that a statute contravenes s 2(b) of the Charter a court would
examine whether the purpose or effect of a law contravenes section 2(b)87 There is no
reason to suggest that the purpose of the PWPA was to infringe the freedom of
expression The purpose of the PWPA is to protect important public infrastructures A
court would then have to consider whether the effect of the PWPA may have resulted in
an infringement of freedom of expression
O Reg 23310 defined significant portions of downtown Toronto as a ldquopublic workrdquo
Section 3(c) of the PWPA allows peace officers to refuse entry into public works which
therefore limits the areas in which protesters could express themselves By creating the
84 Irwin Toy Ltd v Queacutebec (Attorney General) [1989] 1 SCR 927 at 96885 Ibid at 97086 [1991] 1 SCR 139 at 165-16687 Peter Hogg Constitutional Law of Canada loose-leaf (consulted on 7 January 2011) 5th ed (Toronto Thomson Reuters Canada Limited 2007) at 43-6
37
relatively large security perimeter designated by the regulation individuals may allege
they were not permitted to communicate directly with those they were protesting against
Furthermore individuals could not communicate in public places such as public streets
where the right to freedom of expression has previously been found to exist88
Commissioner Ted Hughes completed an interim report following a public hearing into
the complaints regarding events that took place with respect to the Asia Pacific Economic
Cooperation (APEC) Conference in Vancouver British Columbia in November 1997
Commissioner Hughes recommended that generous opportunity should be afforded to
peaceful protesters to be seen in their protest activities by guests at the event89
Section 7 of the Charter provides that ldquoEveryone has the right to life liberty and security
of the person and the right not to be deprived thereof except in accordance with the
principles of fundamental justicerdquo The PWPA raises issues regarding the liberty and
security of the person in providing for warrantless searches and stopping for
identification Furthermore vague laws offend two fundamental values of our legal
system90 Firstly individuals are not provided with sufficient guidance as to what
behaviour a law prohibits Secondly those in charge of enforcing the law are not
provided with clear guidance as to how to enforce it A vague law can lead to inconsistent
and arbitrary enforcement91
88 Supra note 86 89 Canada Commission for Public Complaints Against the RCMP APEC ndash Commission Interim Report (31 July 2001) at s 3111 (Commissioner Ted Hughes QC) online Commission for Public Complaints Against the RCMP lthttpwwwcpc-cppgccaprrrepphrapecapec-31-engaspxgt90 Supra note 87 at 47-60 91 ldquoA vague provision does not provide an adequate basis for legal debate that is for reaching a conclusion as to its meaning by reasoned analysis applying legal criteria It does not sufficiently delineate any area of risk and thus can provide neither fair notice to the citizen nor a limitation of enforcement discretion Such
38
As described by Professor Hogg92
The requirement that any limit on rights be prescribed by law reflects two values that are basic to constitutionalism or the rule of law First in order to preclude arbitrary and discriminatory action by government officials all official action in derogation of rights must be authorized by law Secondly citizens must have reasonable opportunity to know what is prohibited so that they can act accordingly Both these values are satisfied by a law that fulfils two requirements (1) the law must be adequately accessible to the public and (2) the law must be formulated with sufficient precision to enable people to regulate their conduct by it and to provide guidance to those who apply the law
As I stated earlier the phrase ldquoany approach theretordquo contained in s 3(a) of the PWPA is
potentially vague No criteria are provided to assist in determining when one is on ldquoany
approach theretordquo A phrase such as ldquoany approach theretordquo is subject to many potential
interpretations It is arguable that this language does not provide reasonable guidance for
individuals to obey the law and for the law to be consistently enforced
Section 8 of the Charter provides that ldquoEveryone has the right to be secure against
unreasonable search or seizurerdquo A warrantless search or seizure is only reasonable if the
search was authorized by law the law itself is reasonable and the manner in which the
search carried out was reasonable93 The fact that no reasonable or probable suspicions
are needed to carry out a search pursuant to s 3(b) of the PWPA raises some issues The
only prerequisite to such a search is that the person or vehicle being subjected to a search
is entering or attempting to enter a public work
a provision is not intelligible to use the terminology of previous decisions of this Court and therefore it fails to give sufficient indications that could fuel a legal debaterdquo (R v Nova Scotia Pharmaceutical Society [1992] 2 SCR 606 at 639-640) 92 Supra note 87 at 38-1293 R v Nolet [2010] SCJ No 24 at para 21
39
Whether the PWPArsquos s 3(b) authority to undertake warrantless searches is ldquoreasonablerdquo
depends on the reasonableness of the impact on the subject of the search ldquoThe
individuals reasonable expectation of privacy must of course be balanced against the
public interest in effective law enforcementrdquo94 It is harder to justify a warrantless search
where the reasonable expectation of privacy is higher For example interference with
bodily integrity will raise the standard of reasonableness Conversely in situations where
people expect to have a lower level of privacy the standard to prove reasonableness is
lower
One rightfully has some expectation of privacy when in public but it does not rise to the
level of privacy that one expects in onersquos home The expectation of privacy further
decreases when one attempts to enter a ldquopublic workrdquo especially in the context of a
secured barrier to an intergovernmental conference
Section 9 of the Charter provides that ldquoEveryone has the right not to be arbitrarily
detained or imprisonedrdquo95 Under s 3(a) of the PWPA a person entering or attempting to
enter or approach a public work must provide his or her name and address and state the
purpose for which he or she desires to enter the public work In order for a guard or
peace officer to carry out this duty the guard or peace officer may ldquostoprdquo the person from
further approaching or entering the public work and the person is not permitted under the
statute to decide not to enter By so doing it is arguable the guard or peace officer has
assumed control over the movement of the individual by a demand or direction The
94 R v Rao [1984] OJ No 3180 at para 79 (CA)95 ldquoDetention under s 9hellipof the Charter refers to a suspension of the individualrsquos liberty interest by a significant physical or psychological restraint Psychological detention is established either where the individual has a legal obligation to comply with the restrictive request or demand or a reasonable person would conclude by reason of the state conduct that he or she had no choice but to complyrdquo (R v Grant [2009] SCJ No 32 at para 44)
40
PWPA provides for a significant legal consequence if the demand or direction is not
followed since ldquoEvery person who neglects or refuses to comply with a request or
direction made under this Act by a guard or peace officer and every person found upon a
public work or any approach thereto without lawful authority the proof whereof lies on
him or her is guilty of an offence and on conviction is liable to a fine of not more than
$500 or to imprisonment for a term of not more than two months or to bothrdquo96
Pursuant to s 3(b) of the PWPA a guard or peace officer may search any person entering
or attempting to enter a public work These searches would necessitate the detention of a
person If a guard or peace officer performs such a search he or she has taken control
over the movement of the person by a demand or direction The same serious legal
consequence results from failing to obey this demand or direction as that which results
from failing to obey the demand or direction pursuant to s 3(a) of the PWPA As a
result ldquodetentionsrdquo could occur pursuant to both s 3(a) and s 3(b) of the PWPA
The question that would need to be addressed in any challenge to the PWPA is whether
the detentions permitted by the PWPA are arbitrary in nature The use of the term ldquoany
approach theretordquo is vague and imprecise A person could be deemed to be on ldquoany
approach theretordquo a great distance from the entrance of a public work and their detention
might very well be arbitrary In addition the fact that the guards and peace officers
determine the boundaries of the ldquoapproachesrdquo which cannot be contested seems
arbitrary as well as who they chose to search
96 It should be noted that not all communications with state authorities and police officers will amount to a detention The question is whether a person may reasonably believe that he or she is free to refuse to comply
41
Section 11(d) of the Charter provides that ldquoAny person charged with an offence has the
right to be presumed innocent until proven guilty according to law in a fair and public
hearing by an independent and impartial tribunalrdquo This requires that the Crown have the
burden of proving the guilt of an individual charged with an offence97 Provisions that
place the burden on the accused to disprove on the balance of probabilities an essential
element of an offence raises s 11(d) concerns because convictions would be possible
even if reasonable doubt existed98 The presumption of innocence is not only infringed
upon by a requirement that an accused disprove an essential element of an offence but
also any requirement on an accused to prove a fact on the balance of probabilities to
avoid conviction
Section 5(1) of the PWPA states that ldquoEvery person who neglects or refuses to comply
with a request or direction made under this Act by a guard or peace officer and every
person found upon a public work or any approach thereto without lawful authority the
proof whereof lies on him or her is guilty of an offence and on conviction is liable to a
fine of not more than $500 or to imprisonment for a term of not more than two months or
to bothrdquo For the offence of being found upon a public work or on any approach to a
public work without lawful authority the burden of proof has been ldquoshiftedrdquo from the
Crown to the accused to prove lawful authority
As the foregoing analysis reveals there are certainly many concerns that arise when one
places the PWPA under the lens of the Charter However the rights and freedoms
provided by the Charter are not absolute They are ldquosubject only to such reasonable
97 R v Oakes [1986] 1 SCR 10398 Ibid at 132
42
limits prescribed by law as can be demonstrably justified in a free and democratic
societyrdquo99
In assessing whether a law which infringes the Charter is saved by s 1 a court examines
both the object of the law and the measures taken to achieve that objective A lawrsquos
objective achieves the status of being sufficiently important to justify overriding a
Charter right only when it is consistent with the values of a free and democratic society
The objective must relate to pressing and substantial concerns and not concerns that are
trivial and must be focussed on ldquothe realization of collective goals of fundamental
importancerdquo100 The measures adopted must be ldquorationally connectedrdquo to the objective of
the law101 The measures ldquoshould impair lsquoas little as possiblersquo the right or freedom in
questionrdquo102 Furthermore there must be ldquoa proportionality between the effects of the
measures which are responsible for limiting the Charter right or freedom and the
objective which has been identified as of lsquosufficient importancersquordquo103
An issue that may affect whether the potential limitation on rights and freedoms of the
PWPA and O Reg 23310 were ldquoprescribed by lawrdquo is whether the regulation was
adequately accessible to the public The Ontario Ombudsman the CCLA and the Ontario
Bar Association (ldquoOBArdquo) all noted a lack of notice regarding O Reg 23310 and its
effects prior to and during the G20 While the text of the regulation was available prior
99 Charter s 1 The Superior Court of Quebec decision of Tremblay v Queacutebec (Attorney General) [2001] JQ No 1504 (CS) involved an interim injunction brought by an applicant who was denied entry into the secured perimeter during the 2001 Summit of the Americas in Queacutebec City The applicant sought an injunction to either eliminate the security barrier or to be given a pass to let him within the secured perimeter Even though the Court held that the erection of the security zone violated the applicantrsquos right to freedom of expression and peaceful assembly The court held that the infringement was ldquodemonstrably justified in a free and democratic societyrdquo100 Supra note 97 at 136101 Ibid at 139102 Ibid103 Ibid
43
to the G20 it was only available on a website not frequently accessed by the public
Since O Reg 23310 was not published in The Ontario Gazette until after it was
revoked it may be that the regulation was not adequately accessible to the public
Reverse onus offences have been found to be ldquorationally connectedrdquo when there is plainly
a rational connection between the proven fact and the fact to be presumed Reverse
onuses have also been upheld when the burden placed on the Crown would be virtually
impossible to meet (such as proving sanity)104 Even if the accused only has the burden
of disproving the fact that heshe did not have lawful authority to be in a public work or
on an approach thereto there may not be a rational connection between the proven fact
and the fact to be presumed
The history of threats and violence at previous intergovernmental conferences
demonstrated that the protection of G20 participants was a pressing and substantial
concern However given the broadness of the PWPA every exercise of it raises the
potential for Charter scrutiny
Recommendation
Given the public policy considerations I have raised regarding the PWPA and Charter
concerns that could arise I recommend that the PWPA be repealed after the Province has
considered potential policy and security gaps as a result of its repeal
B Other uses of the Public Works Protection Act
It appears from my consultations with stakeholder groups that if the PWPA is repealed
104 R v Chaulk [1990] 3 SCR 1303 at 1340
44
there are two areas which may require legislation to provide specific peace officer
powers These two areas are court security and the protection of nuclear power facilities
and other power generating infrastructures
1 Court Security
During my decade as Ontariorsquos Attorney General (1975 to 1985) there were three
murders in provincial courthouses as well as many threats to members of courthouse staff
and others As violent acts in courthouses can be anticipated courtroom security is often
required
Individuals are compelled to go to court for a variety of reasons such as appearing as an
accused as a witness or for jury duty To provide protection to those who work there or
are compelled to attend an adequate level of court security may require a search without
warrant of each and every individual who seeks to enter a courthouse It is not reasonable
to require prior judicial authorization for each search that takes place
The courts have considered the constitutionality of these provisions of the PWPA in
conjunction with section 137 of the Ontario Police Services Act in the context of court
security
Section 137 of the Ontario Police Services Act imposes a responsibility on municipal
police services boards to secure the premises where court proceedings are conducted and
includes
1 Ensuring the security of judges and of persons taking part in or attending proceedings
45
2 During the hours when judges and members of the public are normally present ensuring the security of the premises
3 Ensuring the secure custody of persons in custody who are on or about the premises including persons taken into custody at proceedings
4 Determining appropriate levels of security for the purposes of paragraphs 1 2 and 3
In R v Campanella105 Ms Campanella was attending the John Sopinka Courthouse in
Hamilton At the courthouse there were signs posted stating that those who entered
would be searched for weapons When Ms Campanellarsquos bag was searched marijuana
was found and she was charged with the possession of marijuana She argued that her s
8 Charter protection against unreasonable search and seizure had been violated and the
marijuana discovered during the search should therefore be excluded as evidence The
trial judge and the summary convictions appeal court rejected the section 8 Charter
argument and the appellant appealed to the Ontario Court of Appeal
The Ontario Court of Appeal agreed that ldquogiven the importance of the government
objective and the context in which these searches take place it is reasonable to authorize
warrantless searches of those entering courthouse facilitiesrdquo106 The Court stated ldquothe
only effective way to diminish the risk in a large courthouse is to subject everyone
without prior security clearance to some kind of inspection I can see no other feasible
means of achieving the aimrdquo107
The Court also pointed out the concern relating to the erosion of the benefits and
105 [2002] OJ No 5104 (SCJ) affrsquod [2005] OJ No 1345 (CA) [ldquoCampanellardquo]106 R v Campanella [2005] OJ No 1345 at para 17 (CA)107 Ibid at para 19
46
protections conferred by s 8 of the Charter108
I am sensitive to the concern that we should not erode the benefits and protections of s 8 by gradually sanctioning ever-greater intrusions into privacy because of unfounded fears We should not lightly accept that searches in public places are justified solely because people have become used to them and expect them However the record in this case establishes the justification for the kinds of searches carried out in this case
Ultimately the appeal was dismissed and s 137 of the Police Services Act and s 3(b) of
the PWPA) were held to comply with s 8 of the Charter109
In its consultations with me the OBA similarly stated that the existing nature of court
security is necessary and is generally ldquowell toleratedrdquo At the same time however it
submits that the security regime should not be ldquoshoehornedrdquo into the PWPA regime and
that it would be preferable to provide a legislative framework tailored for the specific
security requirements While the PWPA has been relied upon as support for the exercise
of powers by the police in providing court security the OBA submits that the PWPArsquos
ldquosingle security schemerdquo which declares something a ldquopublic workrdquo is an ldquoawkward
blunt instrument in a world where more specialized tools are necessaryrdquo When
warrantless searches are being done on a routine basis it is advisable to have specific
legislation providing peace officers with such power
Recommendation
Court security legislation is currently in place in many jurisdictions across Canada and
contain provisions that permit warrantless searches of persons wanting to access a
108 Ibid at para 25109 The Court in R v SS [2005] OJ No 5002 (SCJ) agreed with the findings and rationale of the Court of Appeal in Campanella
47
courthouse The constitutional validity of such legislation in Manitoba was upheld by that
provincersquos highest court110
Given the ongoing need for warrantless searches at courthouses the Province of Ontario
should consider specific court security legislation in Ontario to support the security
measures in our courthouses if the PWPA is to be repealed taking into consideration the
responsibilities of the municipal police services boards provided in s 137 of the Police
Services Act This legislation should only be passed after proper notice consultation and
legislative debate
2 Power Generating Infrastructures
It is clear from the submissions that I received from representatives of OPG and the
Canadian Nuclear Safety Commission (ldquoCNSCrdquo) that the PWPA currently plays a role in
providing security officers with the powers to secure power generating infrastructures
including the ability to carry firearms and the ability to stop and require identification
from those in proximity to those nuclear plants
Security is of the utmost importance in protecting a nuclear power plant Members of the
public do not need to access a nuclear or similar power facility unless employed at the
facility or carrying out work for the facility111
The security of areas within nuclear power plants is governed by the Nuclear Security
110 R v Lindsay [2004] MJ No 380 (CA) 111 Though the discussion focuses on nuclear power plants I have been informed that other power generating infrastructures use the PWPA to designate their security officers as guards As a result if the PWPA is repealed it will be necessary to broaden the consultations in relation to these other power generating infrastructures
48
Regulations112 Every nuclear power plant must be located within a ldquoprotected areardquo113
This protected area is the area within a fenced perimeter which is alarmed and
continually patrolled This area must be equipped with devices that employ two
independent systems to detect intrusion into the area114 The Nuclear Security
Regulations also provide detailed specifications for the barrier which must enclose the
protected area115 In addition licensees must ldquoidentify all vital areas and implement
physical protection measures ndash including access control and measures designed to delay
unauthorized accessrdquo116
The Nuclear Security Regulations also provide detailed provisions regarding entry into
protected areas No person can ldquoenter a protected area without physical proof of the
recorded authorization of the licenseerdquo117 Further to this on entry into a protected area
ldquothat personrsquos identity shall be verified by two separate personnel identity verification
systems one of which is an access card reader and the other of which is a biometric
personnel identity verification devicerdquo118 Licensees must also ldquoensure that vehicle
portals are used for the entry and exit of land vehicles into and from a protected areardquo119
Physical protection measures are also required to reduce the chance of a forced land
vehicle entry into a protected area120
The power to conduct searches upon entry to a protected area is also provided by the
112 SOR2000-209 113 Ibid s 8114 Ibid s 11(a)(i)115 Ibid s 9116 Ibid s 141117 Ibid s 17(1)118 Ibid s 171119 Ibid s 91(1)120 Ibid s 91(4)
49
Nuclear Security Regulations Signs must be posted that are visible to people about to
enter the protected area stating that they must allow a nuclear security officer (ldquoNSOrdquo) to
ldquosearch them and everything in their possession including any land vehicle for weapons
and explosive substancesrdquo121 In addition when leaving the protected area people must
allow NSOs to ldquosearch them and everything in their possession including any land
vehicle for Category I II or III nuclear materialrdquo122 People are not permitted to enter or
leave a protected area unless these searches are carried out123 The Nuclear Security
Regulations provide for the method of search including ldquoa hand-held scanner a walk-
through scanner or any similar devicerdquo124 In addition if an NSO determines it
necessary a frisk search can be carried out by a person of the same sex125
I have been informed that the area outside of but adjacent to the ldquoprotected areardquo is
referred to as the ldquocontrolled areardquo This area includes roadways and waterways within
the nuclear facilityrsquos property boundaries adjacent to or in close proximity to the nuclear
power plantrsquos protected area and may be generally accessible to the public
As a result of the September 11 2001 terrorist attacks the Nuclear Security Regulations
were amended to require that high security nuclear facilities maintain an on-site armed
Nuclear Response Force (ldquoNRFrdquo)126 The NRF is composed of specialized NSOs
Section 32 of the Nuclear Security Regulations requires the NRF to be capable of making
an effective intervention taking into account the threat
121 Ibid s 27(1)(a)122 Ibid s 27(1)(b)123 Ibid s 27(2)124 Ibid s 27(5)(a)125 Ibid s 27(5)(b)126 Ibid s 32
50
Members of the NRF are mandated by the Nuclear Security Regulations to be ldquotrained in
the use of firearms authorized to carry firearms in Canada and qualified to use themrdquo127
However to satisfy this requirement the NRF resorts to the PWPA since the federal
regulations do not authorize the NRF to carry firearms without a licence However
under s 2(1) of the PWPA NSOs are designated as ldquoguardsrdquo with the powers of a peace
officer most significantly to carry and use firearms without having to be licensed128
Such a designation also enables the OPG to acquire and dispose of firearms
In the consultations I had with the OPG and the CNSC they advised me that NSOs
receive training equivalent to Canadian police standards and that NRF officers receive
training equivalent to federal and provincial police tactical team requirements
Another aspect of the PWPA used to secure nuclear power plants relates to powers
exercised by NSOs in ldquocontrolled areasrdquo The federal regulations do not provide the
NSOs with any power to demand identification within this area However pursuant to
the PWPA as appointed ldquoguardsrdquo the NSOs have the power to demand identity
verification in the controlled area They also have the authority to arrest anyone who
obstructs NSOs in the performance of their duties under the PWPA
In addition to using the PWPA to secure the controlled areas I have been advised by the
OPG that NSOs use powers pursuant to the PWPA to secure areas within 100 metres of a
nuclear facilityrsquos property line immediately adjacent to the controlled area These powers
are exercised under the broad language of the PWPA regarding ldquoapproaches to public
127 Ibid s 1 (on-site nuclear response force definition)128 Section 11707 of the Criminal Code exempts peace officers from licensing requirements for possessing firearms and other prohibited and restricted weapons
51
worksrdquo This is an illustration of the problem with the vagueness of this language in the
legislation As these powers are exercised on public land they could be challenged as a
potential infringement on individual rights and freedoms However I have been advised
that there have been no such incidents to date The need to ensure the security of these
facilities must be taken into the balance
NSOs must be able to monitor and control access to the controlled areas and areas close
to a nuclear power plantrsquos property line This provides for a more secure perimeter
around these facilities They need authority to challenge individuals acting in a suspicious
manner or conducting surveillance of nuclear facilities The OPG has informed me that
areas outside a nuclear facilityrsquos property line immediately adjacent to the controlled
area are still close enough to take advantage of the short distance to conduct intelligence
using high-powered surveillance equipment These nuclear power plants are not located
on isolated islands and are therefore vulnerable Both the Pickering Nuclear Generating
Station and the Darlington Nuclear Generating Station operate within major urban areas
being 30 km and 60 km east of downtown Toronto respectively I am advised that
previous events such as ldquoThe Toronto 18rdquo129 have shown that those intent on targeting
vital infrastructure such as power generating facilities often use reconnaissance and
intelligence gathering as precursor tactics
Recommendation
If the PWPA is to be repealed it is imperative that those who secure our nuclear and
power generating facilities be given the requisite specific legislative powers to do so
129 See for example ldquoLast 2 Toronto 18 accused found guiltyrdquo CBC News (23 June 2010) online cbcca lthttpwwwcbccanewscanadatorontostory20100623toronto-18-verdicthtmlgt
52
The source for these powers should be set out in the federal Nuclear Security
Regulations However if this is not a desired option the Government of Ontario must
consider specific legislation setting out the specific powers required to properly secure
these facilities and the specific location in which these powers can be exercised Such
legislation should not be passed without proper notice consultation and legislative
debate
53
SECTION 6 CONCLUSION
The PWPA was enacted in 1939 to support the war effort At the time the protection of
Ontariorsquos hydroelectric facilities from sabotage was of particular concern Since then the
PWPA has been used to provide the legal foundation for the powers exercised by the
police in providing court security and even more recently by the OPG in securing
nuclear power facilities In June 2010 the PWPA was used to provide powers to secure
intergovernmental conferences The vagueness of the PWPA permits it to be used in
situations when it is arguably not necessary and potentially abusive In my view the
PWPA has been used for purposes beyond its original intent
The time for the PWPA seems to have passed If the Government of Ontario enacts as I
have suggested specific legislation to provide for courthouse security and power
generating infrastructure security it would appear that there is no longer a need for the
PWPA I am also mindful of the existence of counter-terrorism and emergencies
legislation to deal with these situations as they arise
ldquoIn determining the boundaries of police powers caution is required to ensure the proper
balance between preventing excessive intrusions on an individualrsquos liberty and privacy
and enabling the police to do what is reasonably necessary to perform their duties in
protecting the publicrdquo130 The overly broad and vague language of the PWPA does not
strike this required balance with individual rights and freedoms
The late Justice Jackson of the United States Supreme Court stated that every
emergency power once conferred ldquolies about like a loaded weapon ready for the hand of
130 R v Clayton [2007] 2 SCR 725 at 742
54
any authority that can bring forward a plausible claim of an urgent needrdquo131 The need to
protect the public must be balanced with the requirement to preserve fundamental rights
and freedoms
Yet at the same time ldquoCanadians are entitled to demand the best public order policing
possible from their governmentrdquo132 There is no question that we live in a different world
post 911 We live in difficult times with constant threats both domestically and from
abroad The police clearly need to be given adequate powers to carry out their duties
The police use their expertise on a daily basis to assess the powers they require In
instances when they take action that exceeds their powers their actions are examined by
various mandated bodies This process I believe results in the proper balance between
police powers and individual rights and freedoms Therefore any legislation that purports
to grant special police powers must be specific and direct and developed in consultation
with stakeholders and tested through thorough debate in our transparent democratic
system
131 Korematsu v United States 323 US 214 (1944)132 Supra note 26 p 8
55
TABLE OF CONTENTS (continued)
Page
4 Emergency Legislation 30
C Gaps in Canadian Police Powers 31
SECTION 5 LEGAL ANALYSIS OF THE PUBLIC WORKS PROTECTION ACT 36
A Legal Analysis of the Legislation 36
B Other uses of the Public Works Protection Act 44
1 Court Security 45
2 Power Generating Infrastructures 48
SECTION 6 CONCLUSION 54
-ii-
SECTION 1 INTRODUCTION
A Terms of Reference and Scope of Review
In September 2010 I was retained by the Ministry of Community Safety and Correctional
Services to conduct a review of the Public Works Protection Act (the ldquoPWPArdquo)1
The Terms of Reference2 for this review provide that I am to identify areas of the PWPA
for reform and if appropriate make specific recommendations for amendment or repeal
(the ldquoReviewrdquo) As part of the process of conducting this Review I was requested to take
into account the historical context of the PWPA and examine its current uses I was also
requested to undertake discussions with key stakeholder groups and other interested
parties3 and to review other relevant reports
The focus of this Review as stated in the Terms of Reference is ldquoto develop a foundation
for future legislationrdquo
B Factual Background
On June 19 2008 Prime Minister Stephen Harper announced that Huntsville Ontario
would host the G8 Summit scheduled for June 25 - 26 2010
On December 7 2009 the Prime Minister announced that Toronto Ontario would host
the G20 Summit scheduled for June 26 - 27 2010 It was not until February 19 2010
that the specific site of the G20 Summit was announced to be the Metro Toronto
Convention Centre in downtown Toronto
1 RSO 1990 c P552 Attached as Appendix 1 is a copy of the Terms of Reference3 Attached as Appendix 2 is a list of all key stakeholder groups and interested parties with whom I met during the course of this Review
1
An Integrated Security Unit (ldquoISUrdquo) was established in 2008 to deal with the security
issues relevant to the G8 and later the G20 Memorandums of understanding entered into
between the Royal Canadian Mounted Police (ldquoRCMPrdquo) and its ISU partners for both
Summits detailed that the RCMP was to be responsible for protecting Internationally
Protected Persons (ldquoIPPsrdquo) as well as the defined ldquocontrolled access zonesrdquo and the other
partners were to be responsible depending on whether it was the G8 or G20 for the areas
immediately adjacent to the controlled access zones referred to as the ldquointerdiction
zonesrdquo For the G8 Summit the Ontario Provincial Police (ldquoOPPrdquo) was to be responsible
for the interdiction zone For the G20 Summit the Toronto Police Service (ldquoTPSrdquo) was
responsible for the interdiction zone
It was TPSrsquos concern regarding its legal authority to establish and secure the interdiction
zone for the G20 Summit which resulted in the use of the PWPA
The TPS requested that the Ontario Government enact a regulation pursuant to the
PWPA4 which would designate the interdiction zone as a ldquopublic workrdquo and thereby give
the TPS the powers granted by the PWPA The regulation enacted pursuant to the PWPA
O Reg 23310 and the exercise by the police of their powers provided by this legislation
triggered this Review
4 Attached as Appendix 3 is a copy of the May 12 2010 letter
2
SECTION 2 THE PUBLIC WORKS PROTECTION ACT
A History of the Public Works Protection Act
The PWPA was enacted in 1939 It in addition to other legislation was passed during an
emergency session of the Ontario Legislative Assembly in response to Canadarsquos entry
into World War II and was considered important in supporting the war effort Lieutenant
Governor Albert Matthews in his throne speech outlined the context in which the
legislation was being passed5
We meet today under circumstances of the utmost gravity The possibility of war in which we are now engaged was fully realized and debated by you at the last session when you passed unanimously a resolution calling in such event for the complete mobilization of all our resources
Legislation calculated to give effect to the determination then expressed will be immediately submitted to you You will be asked to pass measures designed to increase agricultural and industrial production and for the protection of our vital public works and services (emphasis added)
Reports of the legislative debates held in 19396 indicate that protecting the provincersquos
hydroelectric facilities from sabotage was of particular concern The Ontario Government
had asked the Federal Government to provide members of the Canadian military to guard
these works The Federal Government refused and the PWPA was the provincial
response Concerns about restriction on civil liberties were raised in relation to another
bill that would have required permits for the holding of public meetings in public places
however no such concerns were raised in relation to the PWPA The only constitutional
issue raised in debate regarding the PWPA related to whether the Federal Government
was responsible for providing the necessary guards to protect public works as opposed to
requiring provinces to establish ldquoprivate armiesrdquo
5 Ontario Speech of the Throne 20th Parl 4th Sess (19 September 1939)6 Attached as Appendix 4 is a copy of the reports of the legislative debates Note This is the best available copy
3
The PWPA has undergone only minor amendments since 1939 Shortly after it was
enacted two Orders in Council were passed designating areas around the Canadian
General Electric Company Limited and The Canadian Car and Foundry Company as
ldquopublic worksrdquo In 1950 a provision regarding the recovery of certain fines was deleted
In 1960 the provision regarding the appointment of guards was moved from near the end
of the PWPA to closer to the beginning In 1972 the PWPA was amended to reassign
certain responsibilities from the Attorney General to the Solicitor General It was
amended again in 1989 to increase the fine for an offence under the PWPA from $100 to
$500 There have also been some other minor changes of wording since 1939
B Current Uses of the Public Works Protection Act
Although there is legislation in other provinces that defines ldquopublic worksrdquo for other
purposes there is no jurisdiction in Canada which has legislation similar in nature to the
PWPA
As the PWPA was enacted in 1939 as an emergency wartime statute it is perhaps not
surprising that it is relied upon today in only limited circumstances Prior to the G20 the
PWPA had only been relied upon to conduct searches at courthouses in the context of
providing courthouse security This use of the PWPA was upheld by the courts7 In
addition since September 2001 the PWPA has been used by Ontario Power Generation
(ldquoOPGrdquo) to empower its guards to secure its nuclear and non-nuclear power generating
facilities
7 See for example R v Campanella [2002] OJ No 5104 (SCJ) affrsquod [2005] OJ No 1345 (CA) and R v SS [2005] OJ No 5002 (SCJ)
4
C Outline of the Public Works Protection Act
Given the fact that the PWPA is a short statute I am reproducing it here in its entirety for
ease of reference
The Public Works Protection Act
Definitions 1 In this Act
ldquoguardrdquo means a guard appointed under this Act (ldquogardienrdquo)
ldquohighwayrdquo means a common or public highway or a part thereof and includes any street bridge and any other structure incidental thereto and any part thereof (ldquovoie publiquerdquo)
ldquopublic workrdquo includes
(a) any railway canal highway bridge power works including all property used for the generation transformation transmission distribution or supply of hydraulic or electrical power gas works water works public utility or other work owned operated or carried on by the Government of Ontario or by any board or commission thereof or by any municipal corporation public utility commission or by private enterprises
(b) any provincial and any municipal public building and (c) any other building place or work designated a public work by the Lieutenant
Governor in Council (ldquoouvrage publicrdquo) RSO 1990 c P55 s 1
Guards appointment 2(1)For the purpose of protecting a public work guards may be appointed by (a) the Solicitor General
(b) the Commissioner of the Ontario Provincial Police Force (c) any inspector of the Ontario Provincial Police Force
(d) the head or deputy head of the municipal council or the chief of police of the municipality in which the public work is located or the person acting in the place or stead of the head or deputy head
(e) the chair or other person who is the head of a board commission or other body owning or having charge of the public work or the person acting in the place or stead of the chair or other person
Powers of guard (2)Every person appointed as a guard under this section has for the purposes of this
Act the powers of a peace officer
5
Duties of guard (3)Subject to the regulations and to any special direction of the Solicitor General or
the Commissioner of the Ontario Provincial Police Force every guard shall obey all directions of the person appointing him or her any inspector of the Ontario Provincial Police Force the chief of police of the municipality in which is located the public work that he or she is protecting and the person who is in charge of the protecting of the public work
Breach of duty of guard (4)Every guard who (a) neglects or refuses to obey a direction that he or she is required to obey under
subsection (3) (b) fails in any manner to carry out his or her duties as guard
(c) leaves the location to which he or she is assigned as guard or ceases to act as guard without leave of any of the persons mentioned in subsection (3) or
(d) otherwise conducts himself or herself in a manner not consistent with his or her duties as guard
is guilty of an offence and on conviction is liable to a fine of not more than $500 or to imprisonment for a term of not more than two months or to both RSO 1990 c P55 s 2
Powers of guard or peace officer 3A guard or peace officer (a) may require any person entering or attempting to enter any public work or any
approach thereto to furnish his or her name and address to identify himself or herself and to state the purpose for which he or she desires to enter the public work in writing or otherwise
(b) may search without warrant any person entering or attempting to enter a public work or a vehicle in the charge or under the control of any such person or which has recently been or is suspected of having been in the charge or under the control of any such person or in which any such person is a passenger and
(c) may refuse permission to any person to enter a public work and use such force as is necessary to prevent any such person from so entering RSO 1990 c P55 s 3
Statement under oath to be conclusive evidence 4For the purposes of this Act the statement under oath of an officer or employee
of the government board commission municipal or other corporation or other person owning operating or having control of a public work as to the boundaries of the public work is conclusive evidence thereof RSO 1990 c P55 s 4
Refusal to obey guard etc 5(1)Every person who neglects or refuses to comply with a request or direction
made under this Act by a guard or peace officer and every person found upon a public
6
work or any approach thereto without lawful authority the proof whereof lies on him or her is guilty of an offence and on conviction is liable to a fine of not more than $500 or to imprisonment for a term of not more than two months or to both
Arrest (2)A guard or peace officer may arrest without warrant any person who neglects
or refuses to comply with a request or direction of a guard or peace officer or who is found upon or attempting to enter a public work without lawful authority RSO 1990 c P55 s 5
Regulations 6The Lieutenant Governor in Council may make regulations
(a) providing for the organization co-ordination supervision discipline and control of guards
(b) defining the areas that constitute approaches to public works either generally or with regard to a particular public work
(c) respecting any matter necessary or advisable to carry out effectively the intent and purpose of this Act RSO 1990 c P55 s 6
1 Discussion of Key Sections
(a) Definition of ldquoPublic Workrdquo
Section 1 defines ldquopublic workrdquo very broadly There are at least three classes of public
works The first class includes certain transportation infrastructure (ldquorailway canal
highway bridgerdquo) energy infrastructure (ldquopower works including all property used for
the generation transformation transmission distribution or supply of hydraulic or
electrical power gas worksrdquo) other public utilities (ldquowater works public utilityrdquo) and
other ldquoworksrdquo generally (ldquoor other workrdquo) This first class of public works may be
publicly or privately owned (ldquoowned operated or carried on by the Government of
Ontario or by any board or commission thereof or by any municipal corporation public
utility commission or by private enterprisesrdquo)
The second class of defined ldquopublic worksrdquo includes all provincial and municipal
buildings ldquoPublic buildingrdquo is not defined It would appear to clearly include buildings
7
such as the Legislative Assembly courthouses and city halls and likely includes
provincially or municipally owned buildings used for governmental purposes It would
also seem to include provincially or municipally owned buildings used for other
purposes such as libraries for example
The third class of ldquopublic worksrdquo includes any other building place or work designated
as a public work by the Lieutenant Governor in Council The word ldquoplacerdquo would appear
to be a very broad term that could include a public park for example The area
designated by O Reg 23310 fell into this class of ldquopublic workrdquo
(b) Appointment and Powers of Guards and Peace Officers
Section 2 of the PWPA provides for the appointment of ldquoguardsrdquo the powers and duties
of peace officers and guards and the penalties for any breach of duty by these peace
officers and guards The PWPA provides that anyone who is a head of a board
commission or other body having charge over a public work can appoint a guard This is
very broad and arguably allows for the appointment of a private army by someone
ldquohaving charge ofrdquo a public work whoever that may be Pursuant to s 2(2) the ldquoguardsrdquo
have the same powers as a ldquopeace officerrdquo
Section 3 sets out the powers a guard or peace officer acquire pursuant to the PWPA
including that a guard may require people entering or approaching a public work to
identify themselves and to state the purpose for which they desire to enter the public
work In addition the guard or peace officer may search without warrant any person or
vehicle entering or attempting to enter a public work The guard or peace officer can
8
refuse to permit a person to enter a public work and can use as much force as necessary in
this endeavour
(c) Boundaries of Public Work
Section 4 provides that a statement under oath by an officer or employee of the person or
entity operating or having control of a public work regarding the boundaries of the public
work serves as conclusive evidence with respect to the boundaries
(d) Offence Power of Arrest
Section 5 provides that any person who neglects or refuses to comply with a request or
direction made by a guard or peace officer is guilty of an offence In addition a person
who enters a public work or an approach to a public work without lawful authority is
guilty of an offence A person found guilty of an offence is liable to a fine of not more
than $500 andor imprisonment of not more than two months A guard or peace officer
has the power to arrest without warrant any person who refuses to comply with a request
or direction of a guard or peace officer and who enters or attempts to enter a public work
without lawful authority
(e) Regulations
Section 6(b) provides that the Lieutenant Governor in Council may define the areas that
constitute approaches to public works while s 6(c) permits regulations to be made
regarding any matter necessary to carry out the intent and purpose of the PWPA
D Events Leading to Passage of O Reg 23310
There was no apparent reference to the possible use of the PWPA until fairly late in the
planning process for the security for the G20 Summit The Province of Ontario originally
9
attempted to obtain support for its security measures through reliance on a federal statute
the Foreign Missions and International Organizations Act (ldquoFMIOArdquo) which provides
that the RCMP can take ldquoappropriate measuresrdquo to ensure the proper functioning of an
intergovernmental conference ldquoin a manner that is reasonable in the circumstancesrdquo8
On May 7 2010 John Burke Deputy Minister of Community Safety and Correctional
Services of Ontario wrote to William Baker Deputy Minister of Public Safety Canada9
stating that security would be enhanced by the existence of an agreement pursuant to s
101(4) of the FMIOA which provides that the Federal Minister of Public Safety may
enter into arrangements with the government of a province concerning the responsibilities
of members of the RCMP and provincial municipal police forces with respect to
ensuring security for the proper functioning of a conference
On June 11 2010 the Provincial Deputy Minister received a reply10 from the Federal
Deputy Minister indicating that such an agreement would not be required for the
Summits since ldquothe current suite of powers and authorities that peace officers possess at
common law or by virtue of any other federal or provincial Act or regulation were
sufficient for the G8 and G20 Summitsrdquo
The Federal Deputy Minister was clear that in his view the police had sufficient authority
at common law and in statute to secure these conferences Similarly the OPP were of the
view that it was not necessary for the police forces to have any additional police powers
8 SC 1991 c 41 s 101(2) Attached as Appendix 5 is a copy of selected sections of the FMIOA 9 Attached as Appendix 6 is a copy of the May 7 2010 letter10 Attached as Appendix 7 is a copy of the letter received on June 11 2010
10
other than those already conferred by virtue of common law and statute (excluding the
PWPA) in order to secure the interdiction zones for the Summits
On May 12 2010 Chief William Blair of the TPS wrote to the Honourable Rick
Bartolucci Minister of Community Safety and Correctional Services11 stating that a
ldquocornerstonerdquo of the TPS security plan for the G20 Summit would be the establishment of
a security perimeter in an area around the Metro Toronto Convention Centre The
purpose of this security perimeter as explained in the letter was to ldquoensure the safety and
security of those attending the Summit the Summit site itself and people and property
within the area close to the Summit siterdquo Chief Blair indicated that the TPS would rely
upon the authority granted to it pursuant to the common law and if certain conditions are
met the FMIOA12 to establish and control the security perimeter However he believed
that the provisions of the PWPA ldquowould also offer legal support for the extraordinary
security measuresrdquo he believed would be necessary Chief Blair therefore requested ldquothe
Lieutenant Governor in Council to designate the area of or highways within the intended
security perimeter as a public work for the period from June 21 2010 through the end of
the Summit on June 27 2010rdquo A detailed description of the area requested to be
designated as a public work was provided to Minister Bartolucci as well as an aerial
photograph of the area
I am not aware that any organization publicly questioned the inherent police power to
erect fences defining the interdiction zone The Canadian Civil Liberties Association
11 See Appendix 312 This probably is in reference to s 101(4) of the FMIOA which provides the authority for the Minister of Public Safety and Emergency Preparedness to enter into arrangements with the government of a province concerning the responsibilities of members of the RCMP and members of the provincial and municipal police forces with respect to ensuring the security for the proper functioning of an intergovernmental conference
11
(ldquoCCLArdquo) published a document entitled ldquoProtecting civil liberties and human rights at
the G20 statement of concernsrdquo on May 21 201013 In this document the CCLA
expressed concern with the size of the security perimeter ldquoParticularly where there is a
primary fence to ensure safety around conference venues and delegate hotels any further
restrictions on mobility or protest must be fully and carefully justifiedrdquo14 However the
CCLA supported ldquothe overall goal of ensuring that the G20 is conducted in a manner that
is safe for delegates protesters and Toronto residents in generalrdquo15 and noted the
RCMPrsquos authority under the FMIOA There was no doubt expressed by the CCLA
concerning the power of police to erect security fences
By letter dated June 15 201016 Minister Bartolucci wrote to Chief Blair acknowledging
the request and stating in part
I agree that there are various sources of legal authority to support the security perimeter I also recognize the desirability of having additional sources of legal authority to ensure clarity regarding the ability of the Toronto Police Service to take the steps that it will be taking Accordingly I am pleased to inform you that a regulation has been made under the PWPA in response to your request
The Minister informed Chief Blair that O Reg 23310 had been filed with the Registrar
of Regulations and would come into force on June 21 2010 and would be revoked as of
June 28 2010 The area requested by Chief Blair to be designated as a ldquopublic workrdquo
was so designated in O Reg 23310
13 Canadian Civil Liberties Association Protecting civil liberties and human rights at the G20 statement of concerns May 21 2010 online Canadian Civil Liberties Association lthttpcclaorgwordpresswp-contentuploads201005G20-CCLA-Statement-of-Concernspdfgt14 Ibid p 415 Ibid p 316 Attached as Appendix 8 is a copy of the June 15 2010 letter
12
Four days earlier on June 11 2010 Mike McDonell the Assistant Commissioner of the
RCMP sent a letter to Chief Blair17 containing a thorough review of the statutory sources
of the RCMPrsquos duties and powers to secure intergovernmental conferences Assistant
Commissioner McDonell outlined the police authority to fully secure the G8 and G20
Summits
More specifically in relation to the Summits the RCMP will be taking measures to fulfill duties related to the protection of Internationally Protected Persons (IPPrsquos) that befall police in general and the RCMP in specific The official visit of the head of state or high ranking dignitary of a foreign country is an event that frequently engenders a real or apprehended threat to the preservation of peace which demands the adoption of proper and reasonable security measures in and by the host country
Furthermore Canada is a signatory of the United Nations Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons Including Diplomatic Agents In that regard Canada has specifically adopted laws requiring peace officers to protect IPPs as defined in section 2 of the Criminal Code in accordance with its international obligationshellip
Legal authorities also permit the RCMP to collaborate with other police forces such as the OPP in the fulfillment of its duties including in relation to securing the perimeter Such collaboration is essential in light of concurrent mandates of policing partners particularly in relation to the legal duties to preserve the peace and protect life and property
E O Reg 23310
On June 2 2010 Cabinetrsquos Legislation and Regulations Committee passed O Reg
23310 It was signed by the Lieutenant Governor on June 3 2010 and published on June
16 2010 on e-Laws a website maintained by the Government of Ontario not frequently
accessed by the public This website provides access to official copies of Ontariorsquos
statutes and regulations O Reg 23310 came into force on June 21 2010 and was
17 Attached as Appendix 9 is a copy of the June 11 2010 letter
13
revoked on June 28 2010 It was not published in The Ontario Gazette18 until July 3
2010 after it had already been revoked Section 23(2) of Ontariorsquos Legislation Act
200619 provides that a regulation is not effective against a person before the earliest of
when the person has actual notice of it the last instant on the day on which it is published
on the e-Laws website or the last instant of the day on which it is published in the print
version of The Ontario Gazette As a result though the technical requirements for
providing notice of O Reg 23310 were met I have concerns whether adequate notice
was given to the public especially in light of the fact that the regulation was not
published in The Ontario Gazette until it had already been revoked
The regulation set out the area where the security fence was to be erected and designated
that area as a ldquopublic workrdquo which then called into play all the powers provided by the
PWPA
ONTARIO REGULATION 23310
made under the
PUBLIC WORKS PROTECTION ACT
Made June 2 2010Filed June 14 2010
Published on e-Laws June 16 2010Printed in The Ontario Gazette July 3 2010
DESIGNATION OF PUBLIC WORKS
Designation 1 The following are designated as public works for the purposes of the Act 1 Everything described in clause (a) of the definition of ldquopublic workrdquo in section
1 of the Act that is located in the area described in Schedule 1 including without limitation and for greater certainty every sidewalk in that area
2 The places described in paragraphs 1 2 and 3 of Schedule 2
18 The Ontario Gazette contains Ontariorsquos legal notices and regulations19 SO 2006 c 21 Sched F
14
Revocation 2 This Regulation is revoked on June 28 2010
Commencement 3 This Regulation comes into force on the later of June 21 2010 and the day
it is filed SCHEDULE 1
AREA REFERRED TO IN PARAGRAPH 1 OF SECTION 1
The area in the City of Toronto lying within a line drawn as follows
Beginning at the curb at the southeast corner of Blue Jays Way and Front Street West then north to the centre of Front Street West then east along the centre of Front Street West to the east curb of Windsor Street then north along the east curb of Windsor Street to the centre of Wellington Street then east along the centre of Wellington Street to the centre of Bay Street then south along the centre of Bay Street to a point directly opposite the north wall of Union Station then west along the exterior of the north wall of Union Station to the centre of York Street then south along the centre of York Street continuing east of the abutments under the railway overpass and continuing south along the centre of York Street to the centre of Bremner Boulevard then west along the centre of Bremner Boulevard to the east curb of Lower Simcoe Street then south along the east curb of Lower Simcoe Street to the north curb of Lake Shore Boulevard West then west along the north curb of Lake Shore Boulevard West to the south end of the walkway that is located immediately west of the John Street Pumping Station and runs between Lake Shore Boulevard West and the bus parking lot of the Rogers Centre then north along the west edge of that walkway to the bus parking lot of the Rogers Centre then west along the south edge of the bus parking lot of the Rogers Centre to the west edge of the driveway running between the parking lot and Bremner Boulevard then north along the west edge of that driveway to the north curb of Bremner Boulevard then west along the north curb of Bremner Boulevard to the east curb of Navy Wharf Court then north along the east curb of Navy Wharf Court to the southwest point of the building known as 73 Navy Wharf Court then east along the exterior of the south wall of that building then north along the exterior of the east wall of that building to the curb of Blue Jays Way then north along the east curb of Blue Jays Way to the curb at the southeast corner of Blue Jays Way and Front Street West
SCHEDULE 2DESIGNATED PLACES REFERRED TO IN PARAGRAPH 2 OF SECTION 1
1 The area within the area described in Schedule 1 that is within five metres of a line drawn as follows Beginning at the south end of the walkway that is located immediately west of the John Street Pumping Station and runs between Lake Shore Boulevard West and the bus parking lot of the Rogers Centre then north along the west edge of that walkway to the bus parking lot of the Rogers Centre then west along the south edge of the bus parking lot of the Rogers Centre to the west edge of the driveway running between the parking lot and Bremner
15
Boulevard then north along the west edge of that driveway and ending at Bremner Boulevard
2 The area within the area described in Schedule 1 that is within five metres of a line drawn as follows
Beginning at the southwest point of the building known as 73 Navy Wharf Court then east along the exterior of the south wall of that building then north along the exterior of the east wall of that building and ending at the curb of Blue Jays Way
3 The below-grade driveway located between Union Station and Front Street West and running between Bay Street and York Street in the City of Toronto
F Information Given to Public Regarding Security Protocol
Attempts were made to inform the public about the security measures that would be in
place leading up to and throughout the G20 The City of Toronto in consultation with
the ISU produced an information article20 and flyers21 No mention is made in the article
or flyers of the PWPA or O Reg 23310 and the powers given to the police The City of
Toronto also prepared an advertisement which appeared in local newspapers22 The
original version of the advertisement made no reference to the fact that people would be
subject to a search when attempting to access the security perimeter although reference
was made to the requirement to show identification and to have a valid purpose for
entering the restricted area A later version of the advertisement included additional text
advising that anyone requesting access to the security perimeter may be subject to a
search However just as with the article and flyers no specific mention was made of the
PWPA or O Reg 23310
20 A million copies of the newsletter Our Toronto which contained an article entitled ldquoWhat to expect during the G20 ndash June 26 amp 27 2010rdquo were delivered to homes in the City of Toronto21 Approximately 10000 flyers were sent to homes and businesses within the affected area The flyercontained general information about security and the anticipated effects on traffic22 The advertisement appeared in the Toronto Star Toronto Sun and Metroland community papers
16
In the days leading up to and throughout the G20 Summit there was apparently a
misunderstanding on the part of the police regarding a purported ldquofive-metre rulerdquo This
confusion likely emanated from the ldquofive-metresrdquo referenced in Schedule 2 of O Reg
23310 However the purpose of Schedule 2 was to designate as ldquopublic work(s)rdquo three
specific private property locations on which the security fence was to be erected that were
not ldquopublic worksrdquo The remainder of the fence was on public sidewalks and streets
which are ldquopublic worksrdquo To ensure that the fence was located on a ldquopublic workrdquo the
drafters designated the area within five metres of the security fence in these three
locations as a ldquopublic workrdquo23 Unfortunately the wording of Schedule 2 was very
cumbersome and the relationship between the area defined in Schedule 1 and the five-
metre reference in Schedule 2 was difficult to understand
Because of this confusion unfortunately the message was conveyed that the regulation
provided for a five-metres zone outside the entire security fence and that therefore the
PWPA applied to this entire area24 The media reported during the G20 summit that the
police had ldquosweepingrdquo powers pursuant to the PWPA within five-metres outside of the
exterior security fence25 O Reg 23310 did not provide the police such authority
23 Attached as Appendix 10 is a copy of a map showing the three specific areas designated in Schedule 2 of O Reg 2331024 Jennifer Yang ldquoJust being near the G20 security zone can get you arrestedrdquo Toronto Star (25 June 2010) online thestarcom lthttpwwwthestarcomnewsgtatorontog20summitarticle828498--just-being-near-the-g20-security-zone-can-get-you-arrestedgt25 David Rider et al ldquoDalton McGuinty Bill Blair defend quiet boost in arrest powersrdquo Toronto Star (26 June 2010) online thestarcom lthttpwwwthestarcomnewsgtatorontog20summitarticle828974--dalton-mcguinty-bill-blair-defend-quiet-boost-in-arrest-powersgt
17
SECTION 3 COMMENTARY
A Public Policy Considerations
There are some overarching public policy considerations which affect the issues I have
been asked to address in the Terms of Reference
As stated earlier the legislation was the product of emergency World War II concerns
related to the possibility of enemy sabotage of important infrastructures The legislative
debates in September of 1939 were particularly concerned with the provincersquos
hydroelectric facilities However notwithstanding these apparently specific concerns
when drafted the definition of ldquopublic workrdquo is extraordinarily broad and from a policy
standpoint raises questions of overbreadth especially given the ability to designate
almost anything a public work In a mere definition section s 1 of the legislation allows
the Lieutenant Governor in Council to designate ldquoany other building place or workrdquo as a
ldquopublic workrdquo However taken to its logical conclusion an entire city or more could be
designated as a ldquopublic workrdquo The definition of ldquopublic workrdquo includes ldquoany provincial
and any municipal public buildingrdquo but ldquopublic buildingrdquo is not further defined thereby
creating an element of uncertainty as to the specific provincial and municipal buildings
captured by this definition While perhaps extreme measures in times of war require
flexibility in all other circumstances legislation of this nature requires limitations and a
more specialized approach
The expression ldquoprivate armyrdquo was used in the Ontario legislative debate in 1939
Theoretically at least private armies could be created through the use of the ldquoguardrdquo
appointing authority by the many individuals who are authorized to appoint guards
pursuant to the PWPA This authority was apparently in response to the Federal
18
Governmentrsquos refusal to assume through the Defence Department the responsibility of
guarding utilities and industries essential to the war effort While such a result might not
have been contemplated in a parliamentary democracy it is clearly unwise to leave such
a possibility open
Section 3 of the PWPA provides in part that a guard or a peace officer
(a) may require any person entering or attempting to enter any public work or any approach thereto to furnish his or her name and addresshellipand to state the purpose for which he or she desires to enter the public work in writing or otherwise
The primary problem I see with this section is the vagueness of the term ldquoapproach
theretordquo An approach could begin at a considerable distance from the public work
Section 6(b) also provides for the making of regulations ldquodefining the areas that
constitute approaches to public works either generally or with regard to a particular
public workrdquo
In addition s 3(b) of the PWPA provides that a guard or peace officer ldquomay search
without warrant any person entering or attempting to enter a public workrdquo This section
does not permit any person to abandon any attempt to enter a public work in order to
avoid being subjected to a warrantless search Such conduct is adopted by persons who
decide not to enter a secured courthouse in order to avoid a warrantless search
Section 4 provides that for the purposes of the PWPA the statement under oath made by
persons engaged in the operation of a public work ldquoas to the boundaries of the public
work is conclusive evidence thereofrdquo Section 4 should be considered with s 5(1) which
provides that ldquoevery person found upon a public work or any approach thereto without
lawful authority the proof whereof lies on him or her is guilty of an offencehellip(emphasis
19
added)rdquo The provision in s 4 that ldquothe statement under oathhellipis conclusive evidence
thereofrdquo appears to remove from a courtrsquos consideration what could be a legitimate
dispute as to the boundaries of a public work or the approach thereto Furthermore the
apparent reversal of the onus of proof regarding lawful authority to be found in a public
work or an approach found in s 5 is also troublesome from a policy and legal point of
view
Accordingly if utilized to the extreme many government officials could appoint many
private armies to restrict access to many (in fact any) public places where the mere
statement under oath by the private guard of the boundaries of the areas under restricted
access is conclusive proof thereof Such potential for abuse is beyond troubling to say
the least
B Review of other Public Reports
As is evident from the foregoing discussion many issues arise regarding the operation of
the PWPA in todayrsquos context These considerations and others also formed the basis of
concerns raised in public reports which I was asked to review
1 Reports of the Canadian Civil Liberties Association
The CCLA preliminary G20 report26 dealt with most of the police related events that
occurred in Toronto during the G20 conference during the weekend of June 26th and 27th
2010 I will only make reference to a few portions of the report that deal with the Terms
of Reference
26 Canadian Civil Liberties Association A Breach of the Peace ndash A Preliminary Report of Observations During the 2010 G20 Summit June 29 2010 online Canadian Civil Liberties Association lthttpcclaorgwordpresswp-contentuploads201006CCLA-Report-A-Breach-of-the-Peace-Preliminary-report-updated-July-8pdfgt
20
The report of the CCLA called for the repeal or significant amendment to the PWPA ldquoto
meet basic constitutional standardsrdquo27 The CCLA ldquosuggests that the broad police powers
granted under the Act are inconsistent with current Charter requirementsrdquo28
I agree with the observation of the CCLA that the provisions of the PWPA led to a ldquolack
of clarity as to the scope of the search and seizure powersrdquo29 which created many
difficulties and conflicts that probably could have been avoided I would also certainly
agree with a conclusory comment in this preliminary report that ldquoit is the duty of police
officers to act with fairness and equanimity toward all citizens in accordance with the law
of the country The presumption of innocence and the protection against arbitrary arrests
and detention are at the core of a commitment to justicerdquo30
The CCLA in partnership with the National Union of Public Employees organized
public hearings for two days in Toronto and one day in Montreal in November of 2010
which they referred to as a Citizens Inquiry The Citizens Inquiry heard from 63 members
of the public who had witnessed policing incidents or had been detained Several lawyers
and academics also participated in the hearing and offered commentary on the events of
the G20 from a legal or policing perspective including issues related to the PWPA A
report of the hearings titled ldquoG20 Toronto Breach of the Peace Public Hearingsrdquo was
released on February 28 2011 which also referred to the PWPA31
27 Ibid p 2228 Ibid p 929 Ibid p 1230 Ibid p 2131 Canadian Civil Liberties Association and the National Union of Public and General Employees G20 Toronto Breach of the Peace Public Hearings February 2011 online Canadian Civil Liberties Association lthttpcclaorgwordpresswp-contentuploads201102Breach-of-the-Peace-Final-Reportpdfgt
21
2 The Ontario Ombudsman Report
The Ontario Ombudsman commenced an investigation after receiving complaints relating
to a variety of issues concerning the G20 The Marin Report recognized that ldquotypically
international summits attract protests and protests can turn violent and even deadlyrdquo32
The report therefore does not quarrel with the requirement that a high level of security is
required for such events
The report in my view accurately describes the PWPA as ldquounique in Canada in terms of
the breadth of its reach and the powers it confershellipno other Canadian statute defining
lsquopublic worksrsquo contains provisions similar to those found in Ontariorsquos Actrdquo33
32 Ontario Ombudsman report Investigation into The Ministry of Community Safety and Correctional Servicesrsquo Conduct in Relation to Ontario Regulation 23310 under the Public Works Protection Act ldquoCaught in the Actrdquo by Andreacute Marin (Toronto Ombudsman of Ontario December 2010) online Ombudsman of Ontario lthttpwwwombudsmanoncamedia157555g20final1-enpdfgt (ldquoMarin Reportrdquo) at para 733 Ibid at para 97
22
SECTION 4 POWERS OF THE POLICE
Pursuant to the Terms of Reference I have been asked to consider for future purposes
whether the powers given to peace officers and guards under the PWPA are necessary to
protect public works secure intergovernmental conferences or for any other purposes
To answer that question it is necessary to assess whether the current common law and
statutory regime provide the police with sufficient powers to perform these vital services
A Common Law Powers and Powers Pursuant to Police Services Acts
The police have extensive common law powers that can be used in protecting and
securing intergovernmental conferences and in protecting public works It is necessary to
examine those powers in order to assess whether and what if any additional powers are
needed such as those provided by the PWPA
Of particular assistance in this regard is R v Knowlton34 where the Supreme Court of
Canada considered whether the powers possessed by peace officers at common law and
statute in securing an area for the protection of a foreign dignitary were lawful The
Supreme Court of Canada held that in order for the exercise of peace officer powers to be
lawful the powers must satisfy the two step test set out in R v Waterfield35 First the
power must be in furtherance of a lawful duty Traditional common law peace officer
duties include the preservation of the peace and the prevention of crime These common
law police duties amongst others are now statutorily enshrined in s 42(1) of Ontariorsquos
Police Services Act (and other provincial police services acts)36 The second part of the
test requires an evaluation of whether the conduct of the peace officer was ldquojustifiedrdquo To
34 [1974] SCR 443 [ldquoKnowltonrdquo]35 See for example R v Dedman [1985] 2 SCR 236 RSO 1990 c P15
23
do so one applies the standard of what is reasonably necessary in light of the totality of
the circumstances In evaluating whether the conduct of the peace officer was justified it
is important to consider ldquothe duty being performed the extent to which some interference
with individual liberty is necessary in the performance of that duty the importance of the
performance of the duty to the public good the nature of the liberty being interfered with
and the nature and extent of the interferencerdquo37
In Knowlton police in Edmonton cordoned off an area as part of the security
arrangements for the visit of Premier Kosygin of the USSR Premier Kosygin had been
assaulted in Ottawa a few days prior to his visit to Edmonton Knowlton entered the
secured area questioning the power of the peace officer to prevent his entry He was
arrested without a warrant and charged with obstructing a peace officer in the execution
of his duties Knowlton argued that the peace officer did not have the power to prevent
his entry and was not acting in the execution of his duty
The Supreme Court of Canada emphasized the heightened importance of security when
there are visiting foreign dignitaries38
It is notorious and of common knowledge that the official visit of the head of state or high rank dignitary of a foreign country friendly as either may be is an event that frequently engenders a real or apprehended threat to the preservation of peace and that calls therefore for the adoption of proper and reasonable security measures in and by the host countryhellipThe restriction of the right of free access of the public to public streetshellipwas one of the steps--not an unusual one--which police authorities considered and adopted as necessary for the attainment of the purpose aforesaid In my opinion such conduct of the police was clearly falling within the general scope of the duties imposed upon them
37 R v Mann [2004] 3 SCR 59 at 7938 Supra note 34 at 447-448
24
In addressing the first part of the Waterfield test the Court referenced provisions of the
Alberta Police Act and the Criminal Code and concluded that the conduct of the peace
officers fell within the general scope of the duties imposed upon them for example
preservation of the peace and prevention of crime39
According to the principles which for the preservation of peace and prevention of crime underlie the provisions of s 30 amongst others of the Criminal Code these official authorities were not only entitled but in duty bound as peace officers to prevent a renewal of a like criminal assault on the person of Premier Kosygin during his official visit in Canada In this respect they had a specific and binding obligation to take proper and reasonable steps The restriction of the right of free access of the public to public streets at the strategic point mentioned above was one of the steps--not an unusual one--which police authorities considered and adopted as necessary for the attainment of the purpose aforesaid In my opinion such conduct of the police was clearly falling within the general scope of the duties imposed upon them
In analyzing the second step of the Waterfield test the Court concluded that there was no
evidence indicating the police officers resorted to an unjustifiable use of the powers
associated with the duties imposed on them
The Court in Knowlton recognized broad police powers to cordon off areas as part of the
security arrangements involving internationally protected persons In addition the Court
found that the warrantless arrest in that case was not an unjustifiable or unreasonable use
of powers associated with the police duties to preserve the peace order public safety and
to enforce the law and prevent crime Finally the Court found that peace officers were
duty bound ldquoto prevent a renewal of a like criminal assault on the person of Premier
Kosygin during his official visit in Canadardquo40 Furthermore it stated the closing of public
39 Ibid 40 Ibid at 447
25
streets ldquowas one of the steps -- not an unusual one -- which police authorities considered
and adopted as necessaryrdquo41
The Knowlton decision clearly acknowledged that the police had the duty and authority to
establish and enforce a secured area to protect a foreign dignitary In order to carry out
these duties the police may do what is reasonably necessary in light of the totality of the
circumstances
Though Knowlton was decided prior to the enactment of the Canadian Charter of Rights
and Freedoms (the ldquoCharterrdquo) this does not in my view affect the clear statement by the
Supreme Court of Canada regarding the duty of the police under the common law and the
Alberta Police Act to provide this security While the facts of Knowlton were quite
compelling in relation to the obvious need to provide adequate security for Premier
Kosygin the decision is equally important authority regarding the general responsibilities
of the police at common law and statute in relation to the preservation of the peace
B Other Statutory Powers
1 Criminal Code
Some specific powers are provided to peace officers pursuant to the Criminal Code42
Section 31 gives peace officers the power to arrest an individual for breach of the peace
Peace officers can arrest those committing the breach of the peace or those who on
reasonable grounds heshe believe are about to join in or renew the breach of the peace
Peace officers also have powers at their disposal under ss 63-69 of the Criminal Code to
deal with the offences of unlawful assembly and riots
41 Ibid at 447-448 42 RSC 1985 c C-46
26
2 Trespass to Property Act
The Ontario Trespass to Property Act43 is a potential source of police power to arrest
without warrant those who are unlawfully on certain premises or who were recently
unlawfully on the premises and refuse to give their name and address44 This statute
deals with illegal entry into both private and public property by creating the offence of
trespass for those who without the express permission of the occupier enter on to
premises or engage in an activity on the premises when it is prohibited by the statute45
Though this statute is primarily used by private property owners to keep unwanted people
off of their property it has also been invoked by the Speaker of the House46 and by the
City of Toronto47 It must be noted however that using the Trespass to Property Act in
relation to removing individuals from ldquopublicrdquo places may raise Charter issues48
3 Foreign Missions and International Organizations Act
The RCMP as peace officers have the general duty to preserve the peace and prevent
crime and offences as set out in s 18 of the Royal Canadian Mounted Police Act49
Additional duties found in s 17 of the Royal Canadian Mounted Police Regulations
198850 include the protection of ldquointernationally protected personsrdquo as defined in s 2 of
the Criminal Code Internationally protected persons include heads of state and their
43 RSO 1990 c T2144 Ibid ss 9(1) 1045 Ibid s 2(1)46R v Behrens [2004] OJ No 5135 (CJ) The Court held that the issue of the trespass notices fell under the Speakerrsquos parliamentary privilege and were not reviewable even on the basis of a Charter argument47R v Semple [2004] OJ No 2137 (CJ)48 In R v Semple the defendants were charged under the Ontario Trespass to Property Act for entering the grounds of Toronto City Hall after being banned from doing so In the end the Court held that the defendantsrsquo peaceful entry onto the grounds was an expression as per s 2(b) of the Charter Torontorsquos notice under the Act infringed on this freedom and in these circumstances it could not be justified under s 1 of the Charter 49 RSC 1985 c R-1050 SOR88-361
27
family members The RCMPrsquos duty to protect internationally protected persons is also
found in s 6(1) of the Security Offences Act51
In addition Canada is a signatory of the United Nations Convention on the Prevention
and Punishment of Crimes against Internationally Protected Persons including
Diplomatic Agents52 This Convention provides that the Government of Canada must
protect visiting heads of state or government foreign ministers representatives or
officials of a state or any official or other agent of an international organization of an
intergovernmental character and the family members that accompany him or her The
RCMP has the responsibility to carry out these security measures
Pursuant to s 101(1) of the FMIOA ldquoThe Royal Canadian Mounted Police has the
primary responsibility to ensure the security for the proper functioning of any
intergovernmental conference in which two or more states participate that is attended by
persons granted privileges and immunities under this Act and to which an order made or
continued under this Act appliesrdquo
The powers to carry out this mandate are found in s 101(2) of the FMIOA ldquothe Royal
Canadian Mounted Police may take appropriate measures including controlling limiting
or prohibiting access to any area to the extent and in a manner that is reasonable in the
circumstancesrdquo It is noteworthy that the FMIOA has legislated the same powers
provided to the police under common law and statute
In order to trigger the RCMP powers described in s 101 the Governor in Council on the
51 RSC 1985 c S-752 UNGA Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons including Diplomatic Agents 20 February 1977 UN Doc I-15410
28
recommendation of the Minister of Foreign Affairs and pursuant to s 5 of the FMIOA
made the G8 Summit Privileges and Immunities Order 201053 on December 10 2009
This order was repealed and a subsequent order54 was made on January 13 2010 A
similar order55 for the G20 Summit was made on March 11 201056
Therefore during the G20 the RCMP had the specific statutory power to limit or
prohibit access to any area and to any extent as long as the measures were appropriate
and done in a manner that was reasonable in the circumstances ldquoThe RCMP may secure
the perimeter of the security zone on land with fencing and restrict access to this zone
through the use of checkpoints and other measuresrdquo57
Though not invoked during the G20 s 101(4) of the FMIOA provides that arrangements
can be entered into with a province concerning the responsibilities of members of the
RCMP and members of the provincial and municipal police forces with respect to
ensuring the security for the proper functioning of an intergovernmental conference No
information was provided to me as to why such an arrangement was not entered into for
the G20
These intergovernmental security provisions of the FMIOA were enacted just prior to the
G8 being held in Kananaskis Alberta in 2002 In light of violent protests at international
events and the 911 terrorist attacks in the United States the Federal Government
53 SOR2009-33654 SOR2010-1355 SOR2010-6256 Supra note 17 ldquoUpon such an Order being made the RCMP in co-operation and collaboration with other police forces becomes impressed with the primary responsibility of ensuring not only the protection of the IPPs but also ensuring lsquosecurity for the proper functioningrsquo of the intergovernmental conference To that end the FMIOA provides that the lsquoappropriate measures including controlling limiting or prohibiting access to any area to the extent and in a manner that is reasonable in the circumstancesrsquo may be takenrdquo57 Ibid
29
considered it timely ldquoto clarify in statute the present common law authority for police to
provide security and protection for high profile international eventsrdquo58 At such events it
was intended that ldquothe RCMP is the lead to make sure that security is providedrdquo59
Given that it was clearly the intention of the Federal Government to have the RCMP as
the lead police force at these international events consideration should be given to
expand the use of the FMIOA to cover all large scale international events such as the
Olympics the Pan American Games and international trade fairs as these events are
routinely attended by heads of state and senior government officials Most recently
Vancouver held the 2010 Olympic and Paralympic Winter Games60 Though federal and
municipal legislation were passed to assist in securing the Games expansion and
application of the FMIOA would have been a better approach The RCMP as the national
police force ought to be in charge pursuant to their authority under the FMIOA
4 Emergency Legislation
Through my consultations with the parties listed in Appendix 2 I heard that while we are
not in a time of war as in 1939 when the PWPA was enacted we live in an age of
international and local terrorism threats Our democratic society must be vigilant in
58 Canada House of Commons Debates 37th Parl 1st Sess No 93 (5 October 2001) at 100059 Canada House of Commons Standing Committee on Public Safety and National Security 40th Parl 3rd
Sess Evidence (25 October 2010)60 In anticipation of this event the Governor General in Council on the recommendation of the Minister of Transport pursuant to the Aeronautics Act (RSC 1985 c A-2) and the Canadian Air Transport Security Authority Act (SC 2002 c 9 s 2) passed the Vancouver 2010 Aviation Security Regulations (SOR2009-298) The purpose of the regulations was to enhance aviation security during the Games The Regulation provided for extra security and extra authorized means to conduct screenings In addition the Vancouver City Council passed the very lengthy By-law No 9962 known as the ldquoVancouver 2010 Olympic and Paralympic Winter Games By-Lawrdquo Specific security measures to be employed at a city live site (described thoroughly in a Schedule to the By-Law) that were enabled by this By-Law included The installation and monitoring of airport style and other security measures including magnetometers and X-ray machines the installation and monitoring of closed circuit television cameras the searching of any person who wished to enter on to a city live site and any bag luggage or other container carried by such person and the prohibiting of access to or removal from a city live site any person who refused to submit to a search
30
maintaining a proper level of security while recognizing that democratic values and
security issues can conflict where public order is at issue It is important to highlight that
provincial legislation exists dealing with both terrorism threats and emergency situations
I have been informed that federal and provincial counter-terrorism plans exist that
address preventing and responding to acts of terrorism
The Police Services Act regulations mandate police forces to establish procedures
consistent with federal and provincial counter-terrorism plans61 and to have policies with
respect to counter-terrorism62 In addition the Emergency Management and Civil
Protection Act allows for orders to be made in situations specifically designated an
ldquoemergencyrdquo63 by the Lieutenant Governor in Council or the Premier that regulate or
prohibit travel and movement to from or within any specified area64 Therefore the
PWPA is not needed to deal with these emergency situations as specific more recent
emergency legislation is in place for that very purpose
C Gaps in Canadian Police Powers
The Ministry of Community Safety and Correctional Services provided me with an
interesting article published in 2010 entitled ldquoThe Gap in Canadian Police Powers
61 Adequacy and Effectiveness of Police Services O Reg 399 s 2862 Ibid s 2963 Section 1 of the Emergency Management and Civil Protection Act defines an ldquoemergencyrdquo as ldquoemergencyrdquo means a situation or an impending situation that constitutes a danger of major proportions that could result in serious harm to persons or substantial damage to property and that is caused by the forces of nature a disease or other health risk an accident or an act whether intentional or otherwise (ldquosituation drsquourgencerdquo)64 RSO 1990 c E9 s 702(4)
31
Canada needs lsquoPublic Order Policingrsquo Legislationrdquo and co-authored by Wesley Pue and
Robert Diab65
This article was prompted by the debate over the cost nature and extent of security to be
employed at the Vancouver 2010 Winter Olympics The authors criticized the fact that
policing authorities in Canada ldquolack specific statutory authorization to take measures
commonly thought necessary to their missionrdquo66 These measures included security
fences in public areas designated protest areas restricted access to public space police
surveillance and searches without cause
The authors recognize that such powers may be necessary but note that ldquono legislature
has ever expressly conferred such powers on policing authorities outside the context of
international intergovernmental conferences Nor does the common law accord such
powers to state officials on its ownrdquo67 I respectfully disagree with this latter statement
It is my view the police have powers pursuant to the common law and statute as I have
discussed in the preceding section
The authors referred to R v Knowlton68 which I have previously discussed While the
authors give Knowlton a very narrow interpretation stating that ldquoits binding principle is a
good deal narrower than the words taken out of context might suggestrdquo69 I however am
of the view that the decision supports the proposition that police have a broad range of
65 Wesley Pue and Robert Diab ldquoThe Gap In Canadian Police Powers Canada Needs lsquoPublic Order Policingrsquo Legislationrdquo (2010) 28 Windsor Rev Legal Soc Issues 87 Wesley Pue is a professor of legal history at the University of British Columbia and Robert Diab is a PhD candidate at the UBC Faculty of Law66 Ibid p 8867 Ibid68 Supra note 3469 Supra note 65 p 92
32
responsibilities with deep historical roots in the common law and codified in statute a
position shared by the Federal Government when it introduced amendments to the
FMIOA The actions of the police in Knowlton were necessarily incidental to their
common law police duties and powers
The authors conclude that this ldquoauthority of police to create zones of exclusion either as
an incident of the general and ancient duties of constableshelliphas never been established in
the courtsrdquo70 I am of the view however that the role of the police in establishing
security zones relating to a crime a serious accident or other emergency is a routine and
well-accepted use of police powers pursuant to their common law and statutory duties I
am not suggesting that this common law authority permits the police to establish security
zones ldquofor the proper functioning of any intergovernmental conference in which two or
more states participaterdquo71 larger than necessary to fulfill their purpose The FMIOA as
amended in 2002 provides the RCMP with ldquoprimary responsibility to ensure the security
for the proper functioning of the intergovernmental conferencerdquo72 It is interesting
however that when the Federal Government was enacting this specific authority the
legislative debates indicated that the government was merely clarifying ldquoin statute the
present common law authority for police to provide security and protection for high
profile international eventsrdquo73
Security perimeters are routinely erected by police in the context of the commission of a
crime motor vehicle and other accidents as well as the Santa Claus parade and other
70 Ibid p 9671 Supra note 8 s 101(1)72 Ibid73 Supra note 58
33
parades It would in my view be quite impractical and unnecessary to legislate an
extensive code of police powers given their common law and statutory responsibilities to
generally maintain public order It is not advisable in my opinion to be prescriptive in
any way regarding what actions the police can take since they must assess what the
situation warrants while at the same time considering individual rights and freedoms
The details of any police response to an emergency must be tailored to the exigencies
related to the situation
The police clearly have common law and statutory authority to conduct warrantless
searches in specific situations (ldquoin exigent circumstancesrdquo)74 However when
warrantless searches must be carried out on a regular routine basis the police are acting
more like full time security guards and there should be specific statutory authority
provided to give such powers
I certainly accept the general proposition the authors assert that the mobility rights of
citizens should not be unreasonably or unfairly dealt with However one only need be
aware of the massive amount of construction taking place on the streets of Toronto as this
Report is being written to appreciate that it is not always reasonable to expect that ldquothe
rights of businesses homeowners and ordinary citizens to go about their routine
activities without interruptionrdquo75 will go unhindered While generally desirable it cannot
be legally guaranteed At the same time the authors do concede that ldquoimportant as they
74 Supra note 42 s 4871175 Supra note 65 p 89
34
are the rights of assembly movement and protest are not unqualified They can ndash and
should ndash be balanced against other important public needsrdquo76
In my view public policing at times requires innovation as it often benefits from
creative problem solving If police abuse their common law powers related to ldquopublic
order policingrdquo they are accountable to a multiplicity of authorities and the rule of law
most particularly the Charter The legal rights outlined in the Charter such as ldquothe
principles of fundamental justicerdquo77 security ldquoagainst unreasonable search and seizurerdquo78
and ldquothe right not to be arbitrarily detained or imprisonedrdquo79 are described very
generally However they were chosen deliberately as it was recognized that in each case
there is an inherent tension between imposing security measures and fundamental rights
and freedoms Determining which is paramount will be based on the facts of each case
76 Ibid p 9177 Canadian Charter of Rights and Freedoms s 7 Part I of the Constitution Act 1982 being Schedule B to the Canada Act 1982 (UK) 1982 c 1178 Ibid s 879 Ibid s 9
35
SECTION 5 LEGAL ANALYSIS OF THE PUBLIC WORKS PROTECTION ACT
A Legal Analysis of the Legislation
Many stakeholders have questioned the constitutional validity of the PWPA and O Reg
23310 The Ontario Ombudsman seriously questioned whether O Reg 23310 could
pass ldquoconstitutional musterrdquo80 The CCLA suggested that the broad police powers
granted under the PWPA were inconsistent with the Charter81
To the same effect were comments made by Premier Dalton McGuinty who described
the PWPA as ldquoan archaic law that was used to undermine Torontoniansrsquo civil rights
during the G20rdquo82 He elaborated83
The issue is whether itrsquos appropriate given our present-day values and given an old law which I am confident doesnrsquot strike the balance that you and I would want today in terms of public safety and individual freedom of expressionhellipWhen you start talking about civil rights individual freedoms yoursquore talking about those things that in fact define us as a free and democratic societyhellipItrsquos something that is real and meaningful and important to all of us
The Terms of Reference for this Review do not require that I conduct a constitutional
analysis of the PWPA I have however been asked to consider areas for reform and if
appropriate make specific recommendations for amendment or repeal This does require
that I therefore consider whether the legislation may be vulnerable to constitutional
challenge
Section 2(b) of the Charter guarantees everyone the fundamental freedom of expression
The definition of ldquoexpressionrdquo has been interpreted broadly ldquoActivity is expressive if it
80 Supra note 32 at para 23381 Supra note 26 p 982 Robert Benzie and Rob Ferguson ldquoMcGuinty shifts focus to fixing G20 lawrdquo Toronto Star (10 December 2010) online thestarcom lthttpwwwthestarcomnewscanadaarticle905436--mcguinty-shifts-focus-to-fixing-g20-lawgt 83 Ibid
36
attempts to convey meaningrdquo84 While freedom of expression is not absolute there is
very little that is not considered expression However expression that advocates violence
is not protected under s 2(b)85
The Supreme Court of Canada in Committee for the Commonwealth of Canada v
Canada held that s 2(b) ldquodoes not encompass the right to use any and all government
property for purposes of disseminating onersquos views on public matters but I have no doubt
that it does include the right to use for that purpose streets and parks which are dedicated
to the use of the public subject no doubt to reasonable regulation to ensure their
continued use for the purposes to which they are dedicatedrdquo86 It seems clear that
protesting in public streets is a form of expression protected by s 2(b) Protesting at an
intergovernmental conference is clearly expressive in nature
In challenges alleging that a statute contravenes s 2(b) of the Charter a court would
examine whether the purpose or effect of a law contravenes section 2(b)87 There is no
reason to suggest that the purpose of the PWPA was to infringe the freedom of
expression The purpose of the PWPA is to protect important public infrastructures A
court would then have to consider whether the effect of the PWPA may have resulted in
an infringement of freedom of expression
O Reg 23310 defined significant portions of downtown Toronto as a ldquopublic workrdquo
Section 3(c) of the PWPA allows peace officers to refuse entry into public works which
therefore limits the areas in which protesters could express themselves By creating the
84 Irwin Toy Ltd v Queacutebec (Attorney General) [1989] 1 SCR 927 at 96885 Ibid at 97086 [1991] 1 SCR 139 at 165-16687 Peter Hogg Constitutional Law of Canada loose-leaf (consulted on 7 January 2011) 5th ed (Toronto Thomson Reuters Canada Limited 2007) at 43-6
37
relatively large security perimeter designated by the regulation individuals may allege
they were not permitted to communicate directly with those they were protesting against
Furthermore individuals could not communicate in public places such as public streets
where the right to freedom of expression has previously been found to exist88
Commissioner Ted Hughes completed an interim report following a public hearing into
the complaints regarding events that took place with respect to the Asia Pacific Economic
Cooperation (APEC) Conference in Vancouver British Columbia in November 1997
Commissioner Hughes recommended that generous opportunity should be afforded to
peaceful protesters to be seen in their protest activities by guests at the event89
Section 7 of the Charter provides that ldquoEveryone has the right to life liberty and security
of the person and the right not to be deprived thereof except in accordance with the
principles of fundamental justicerdquo The PWPA raises issues regarding the liberty and
security of the person in providing for warrantless searches and stopping for
identification Furthermore vague laws offend two fundamental values of our legal
system90 Firstly individuals are not provided with sufficient guidance as to what
behaviour a law prohibits Secondly those in charge of enforcing the law are not
provided with clear guidance as to how to enforce it A vague law can lead to inconsistent
and arbitrary enforcement91
88 Supra note 86 89 Canada Commission for Public Complaints Against the RCMP APEC ndash Commission Interim Report (31 July 2001) at s 3111 (Commissioner Ted Hughes QC) online Commission for Public Complaints Against the RCMP lthttpwwwcpc-cppgccaprrrepphrapecapec-31-engaspxgt90 Supra note 87 at 47-60 91 ldquoA vague provision does not provide an adequate basis for legal debate that is for reaching a conclusion as to its meaning by reasoned analysis applying legal criteria It does not sufficiently delineate any area of risk and thus can provide neither fair notice to the citizen nor a limitation of enforcement discretion Such
38
As described by Professor Hogg92
The requirement that any limit on rights be prescribed by law reflects two values that are basic to constitutionalism or the rule of law First in order to preclude arbitrary and discriminatory action by government officials all official action in derogation of rights must be authorized by law Secondly citizens must have reasonable opportunity to know what is prohibited so that they can act accordingly Both these values are satisfied by a law that fulfils two requirements (1) the law must be adequately accessible to the public and (2) the law must be formulated with sufficient precision to enable people to regulate their conduct by it and to provide guidance to those who apply the law
As I stated earlier the phrase ldquoany approach theretordquo contained in s 3(a) of the PWPA is
potentially vague No criteria are provided to assist in determining when one is on ldquoany
approach theretordquo A phrase such as ldquoany approach theretordquo is subject to many potential
interpretations It is arguable that this language does not provide reasonable guidance for
individuals to obey the law and for the law to be consistently enforced
Section 8 of the Charter provides that ldquoEveryone has the right to be secure against
unreasonable search or seizurerdquo A warrantless search or seizure is only reasonable if the
search was authorized by law the law itself is reasonable and the manner in which the
search carried out was reasonable93 The fact that no reasonable or probable suspicions
are needed to carry out a search pursuant to s 3(b) of the PWPA raises some issues The
only prerequisite to such a search is that the person or vehicle being subjected to a search
is entering or attempting to enter a public work
a provision is not intelligible to use the terminology of previous decisions of this Court and therefore it fails to give sufficient indications that could fuel a legal debaterdquo (R v Nova Scotia Pharmaceutical Society [1992] 2 SCR 606 at 639-640) 92 Supra note 87 at 38-1293 R v Nolet [2010] SCJ No 24 at para 21
39
Whether the PWPArsquos s 3(b) authority to undertake warrantless searches is ldquoreasonablerdquo
depends on the reasonableness of the impact on the subject of the search ldquoThe
individuals reasonable expectation of privacy must of course be balanced against the
public interest in effective law enforcementrdquo94 It is harder to justify a warrantless search
where the reasonable expectation of privacy is higher For example interference with
bodily integrity will raise the standard of reasonableness Conversely in situations where
people expect to have a lower level of privacy the standard to prove reasonableness is
lower
One rightfully has some expectation of privacy when in public but it does not rise to the
level of privacy that one expects in onersquos home The expectation of privacy further
decreases when one attempts to enter a ldquopublic workrdquo especially in the context of a
secured barrier to an intergovernmental conference
Section 9 of the Charter provides that ldquoEveryone has the right not to be arbitrarily
detained or imprisonedrdquo95 Under s 3(a) of the PWPA a person entering or attempting to
enter or approach a public work must provide his or her name and address and state the
purpose for which he or she desires to enter the public work In order for a guard or
peace officer to carry out this duty the guard or peace officer may ldquostoprdquo the person from
further approaching or entering the public work and the person is not permitted under the
statute to decide not to enter By so doing it is arguable the guard or peace officer has
assumed control over the movement of the individual by a demand or direction The
94 R v Rao [1984] OJ No 3180 at para 79 (CA)95 ldquoDetention under s 9hellipof the Charter refers to a suspension of the individualrsquos liberty interest by a significant physical or psychological restraint Psychological detention is established either where the individual has a legal obligation to comply with the restrictive request or demand or a reasonable person would conclude by reason of the state conduct that he or she had no choice but to complyrdquo (R v Grant [2009] SCJ No 32 at para 44)
40
PWPA provides for a significant legal consequence if the demand or direction is not
followed since ldquoEvery person who neglects or refuses to comply with a request or
direction made under this Act by a guard or peace officer and every person found upon a
public work or any approach thereto without lawful authority the proof whereof lies on
him or her is guilty of an offence and on conviction is liable to a fine of not more than
$500 or to imprisonment for a term of not more than two months or to bothrdquo96
Pursuant to s 3(b) of the PWPA a guard or peace officer may search any person entering
or attempting to enter a public work These searches would necessitate the detention of a
person If a guard or peace officer performs such a search he or she has taken control
over the movement of the person by a demand or direction The same serious legal
consequence results from failing to obey this demand or direction as that which results
from failing to obey the demand or direction pursuant to s 3(a) of the PWPA As a
result ldquodetentionsrdquo could occur pursuant to both s 3(a) and s 3(b) of the PWPA
The question that would need to be addressed in any challenge to the PWPA is whether
the detentions permitted by the PWPA are arbitrary in nature The use of the term ldquoany
approach theretordquo is vague and imprecise A person could be deemed to be on ldquoany
approach theretordquo a great distance from the entrance of a public work and their detention
might very well be arbitrary In addition the fact that the guards and peace officers
determine the boundaries of the ldquoapproachesrdquo which cannot be contested seems
arbitrary as well as who they chose to search
96 It should be noted that not all communications with state authorities and police officers will amount to a detention The question is whether a person may reasonably believe that he or she is free to refuse to comply
41
Section 11(d) of the Charter provides that ldquoAny person charged with an offence has the
right to be presumed innocent until proven guilty according to law in a fair and public
hearing by an independent and impartial tribunalrdquo This requires that the Crown have the
burden of proving the guilt of an individual charged with an offence97 Provisions that
place the burden on the accused to disprove on the balance of probabilities an essential
element of an offence raises s 11(d) concerns because convictions would be possible
even if reasonable doubt existed98 The presumption of innocence is not only infringed
upon by a requirement that an accused disprove an essential element of an offence but
also any requirement on an accused to prove a fact on the balance of probabilities to
avoid conviction
Section 5(1) of the PWPA states that ldquoEvery person who neglects or refuses to comply
with a request or direction made under this Act by a guard or peace officer and every
person found upon a public work or any approach thereto without lawful authority the
proof whereof lies on him or her is guilty of an offence and on conviction is liable to a
fine of not more than $500 or to imprisonment for a term of not more than two months or
to bothrdquo For the offence of being found upon a public work or on any approach to a
public work without lawful authority the burden of proof has been ldquoshiftedrdquo from the
Crown to the accused to prove lawful authority
As the foregoing analysis reveals there are certainly many concerns that arise when one
places the PWPA under the lens of the Charter However the rights and freedoms
provided by the Charter are not absolute They are ldquosubject only to such reasonable
97 R v Oakes [1986] 1 SCR 10398 Ibid at 132
42
limits prescribed by law as can be demonstrably justified in a free and democratic
societyrdquo99
In assessing whether a law which infringes the Charter is saved by s 1 a court examines
both the object of the law and the measures taken to achieve that objective A lawrsquos
objective achieves the status of being sufficiently important to justify overriding a
Charter right only when it is consistent with the values of a free and democratic society
The objective must relate to pressing and substantial concerns and not concerns that are
trivial and must be focussed on ldquothe realization of collective goals of fundamental
importancerdquo100 The measures adopted must be ldquorationally connectedrdquo to the objective of
the law101 The measures ldquoshould impair lsquoas little as possiblersquo the right or freedom in
questionrdquo102 Furthermore there must be ldquoa proportionality between the effects of the
measures which are responsible for limiting the Charter right or freedom and the
objective which has been identified as of lsquosufficient importancersquordquo103
An issue that may affect whether the potential limitation on rights and freedoms of the
PWPA and O Reg 23310 were ldquoprescribed by lawrdquo is whether the regulation was
adequately accessible to the public The Ontario Ombudsman the CCLA and the Ontario
Bar Association (ldquoOBArdquo) all noted a lack of notice regarding O Reg 23310 and its
effects prior to and during the G20 While the text of the regulation was available prior
99 Charter s 1 The Superior Court of Quebec decision of Tremblay v Queacutebec (Attorney General) [2001] JQ No 1504 (CS) involved an interim injunction brought by an applicant who was denied entry into the secured perimeter during the 2001 Summit of the Americas in Queacutebec City The applicant sought an injunction to either eliminate the security barrier or to be given a pass to let him within the secured perimeter Even though the Court held that the erection of the security zone violated the applicantrsquos right to freedom of expression and peaceful assembly The court held that the infringement was ldquodemonstrably justified in a free and democratic societyrdquo100 Supra note 97 at 136101 Ibid at 139102 Ibid103 Ibid
43
to the G20 it was only available on a website not frequently accessed by the public
Since O Reg 23310 was not published in The Ontario Gazette until after it was
revoked it may be that the regulation was not adequately accessible to the public
Reverse onus offences have been found to be ldquorationally connectedrdquo when there is plainly
a rational connection between the proven fact and the fact to be presumed Reverse
onuses have also been upheld when the burden placed on the Crown would be virtually
impossible to meet (such as proving sanity)104 Even if the accused only has the burden
of disproving the fact that heshe did not have lawful authority to be in a public work or
on an approach thereto there may not be a rational connection between the proven fact
and the fact to be presumed
The history of threats and violence at previous intergovernmental conferences
demonstrated that the protection of G20 participants was a pressing and substantial
concern However given the broadness of the PWPA every exercise of it raises the
potential for Charter scrutiny
Recommendation
Given the public policy considerations I have raised regarding the PWPA and Charter
concerns that could arise I recommend that the PWPA be repealed after the Province has
considered potential policy and security gaps as a result of its repeal
B Other uses of the Public Works Protection Act
It appears from my consultations with stakeholder groups that if the PWPA is repealed
104 R v Chaulk [1990] 3 SCR 1303 at 1340
44
there are two areas which may require legislation to provide specific peace officer
powers These two areas are court security and the protection of nuclear power facilities
and other power generating infrastructures
1 Court Security
During my decade as Ontariorsquos Attorney General (1975 to 1985) there were three
murders in provincial courthouses as well as many threats to members of courthouse staff
and others As violent acts in courthouses can be anticipated courtroom security is often
required
Individuals are compelled to go to court for a variety of reasons such as appearing as an
accused as a witness or for jury duty To provide protection to those who work there or
are compelled to attend an adequate level of court security may require a search without
warrant of each and every individual who seeks to enter a courthouse It is not reasonable
to require prior judicial authorization for each search that takes place
The courts have considered the constitutionality of these provisions of the PWPA in
conjunction with section 137 of the Ontario Police Services Act in the context of court
security
Section 137 of the Ontario Police Services Act imposes a responsibility on municipal
police services boards to secure the premises where court proceedings are conducted and
includes
1 Ensuring the security of judges and of persons taking part in or attending proceedings
45
2 During the hours when judges and members of the public are normally present ensuring the security of the premises
3 Ensuring the secure custody of persons in custody who are on or about the premises including persons taken into custody at proceedings
4 Determining appropriate levels of security for the purposes of paragraphs 1 2 and 3
In R v Campanella105 Ms Campanella was attending the John Sopinka Courthouse in
Hamilton At the courthouse there were signs posted stating that those who entered
would be searched for weapons When Ms Campanellarsquos bag was searched marijuana
was found and she was charged with the possession of marijuana She argued that her s
8 Charter protection against unreasonable search and seizure had been violated and the
marijuana discovered during the search should therefore be excluded as evidence The
trial judge and the summary convictions appeal court rejected the section 8 Charter
argument and the appellant appealed to the Ontario Court of Appeal
The Ontario Court of Appeal agreed that ldquogiven the importance of the government
objective and the context in which these searches take place it is reasonable to authorize
warrantless searches of those entering courthouse facilitiesrdquo106 The Court stated ldquothe
only effective way to diminish the risk in a large courthouse is to subject everyone
without prior security clearance to some kind of inspection I can see no other feasible
means of achieving the aimrdquo107
The Court also pointed out the concern relating to the erosion of the benefits and
105 [2002] OJ No 5104 (SCJ) affrsquod [2005] OJ No 1345 (CA) [ldquoCampanellardquo]106 R v Campanella [2005] OJ No 1345 at para 17 (CA)107 Ibid at para 19
46
protections conferred by s 8 of the Charter108
I am sensitive to the concern that we should not erode the benefits and protections of s 8 by gradually sanctioning ever-greater intrusions into privacy because of unfounded fears We should not lightly accept that searches in public places are justified solely because people have become used to them and expect them However the record in this case establishes the justification for the kinds of searches carried out in this case
Ultimately the appeal was dismissed and s 137 of the Police Services Act and s 3(b) of
the PWPA) were held to comply with s 8 of the Charter109
In its consultations with me the OBA similarly stated that the existing nature of court
security is necessary and is generally ldquowell toleratedrdquo At the same time however it
submits that the security regime should not be ldquoshoehornedrdquo into the PWPA regime and
that it would be preferable to provide a legislative framework tailored for the specific
security requirements While the PWPA has been relied upon as support for the exercise
of powers by the police in providing court security the OBA submits that the PWPArsquos
ldquosingle security schemerdquo which declares something a ldquopublic workrdquo is an ldquoawkward
blunt instrument in a world where more specialized tools are necessaryrdquo When
warrantless searches are being done on a routine basis it is advisable to have specific
legislation providing peace officers with such power
Recommendation
Court security legislation is currently in place in many jurisdictions across Canada and
contain provisions that permit warrantless searches of persons wanting to access a
108 Ibid at para 25109 The Court in R v SS [2005] OJ No 5002 (SCJ) agreed with the findings and rationale of the Court of Appeal in Campanella
47
courthouse The constitutional validity of such legislation in Manitoba was upheld by that
provincersquos highest court110
Given the ongoing need for warrantless searches at courthouses the Province of Ontario
should consider specific court security legislation in Ontario to support the security
measures in our courthouses if the PWPA is to be repealed taking into consideration the
responsibilities of the municipal police services boards provided in s 137 of the Police
Services Act This legislation should only be passed after proper notice consultation and
legislative debate
2 Power Generating Infrastructures
It is clear from the submissions that I received from representatives of OPG and the
Canadian Nuclear Safety Commission (ldquoCNSCrdquo) that the PWPA currently plays a role in
providing security officers with the powers to secure power generating infrastructures
including the ability to carry firearms and the ability to stop and require identification
from those in proximity to those nuclear plants
Security is of the utmost importance in protecting a nuclear power plant Members of the
public do not need to access a nuclear or similar power facility unless employed at the
facility or carrying out work for the facility111
The security of areas within nuclear power plants is governed by the Nuclear Security
110 R v Lindsay [2004] MJ No 380 (CA) 111 Though the discussion focuses on nuclear power plants I have been informed that other power generating infrastructures use the PWPA to designate their security officers as guards As a result if the PWPA is repealed it will be necessary to broaden the consultations in relation to these other power generating infrastructures
48
Regulations112 Every nuclear power plant must be located within a ldquoprotected areardquo113
This protected area is the area within a fenced perimeter which is alarmed and
continually patrolled This area must be equipped with devices that employ two
independent systems to detect intrusion into the area114 The Nuclear Security
Regulations also provide detailed specifications for the barrier which must enclose the
protected area115 In addition licensees must ldquoidentify all vital areas and implement
physical protection measures ndash including access control and measures designed to delay
unauthorized accessrdquo116
The Nuclear Security Regulations also provide detailed provisions regarding entry into
protected areas No person can ldquoenter a protected area without physical proof of the
recorded authorization of the licenseerdquo117 Further to this on entry into a protected area
ldquothat personrsquos identity shall be verified by two separate personnel identity verification
systems one of which is an access card reader and the other of which is a biometric
personnel identity verification devicerdquo118 Licensees must also ldquoensure that vehicle
portals are used for the entry and exit of land vehicles into and from a protected areardquo119
Physical protection measures are also required to reduce the chance of a forced land
vehicle entry into a protected area120
The power to conduct searches upon entry to a protected area is also provided by the
112 SOR2000-209 113 Ibid s 8114 Ibid s 11(a)(i)115 Ibid s 9116 Ibid s 141117 Ibid s 17(1)118 Ibid s 171119 Ibid s 91(1)120 Ibid s 91(4)
49
Nuclear Security Regulations Signs must be posted that are visible to people about to
enter the protected area stating that they must allow a nuclear security officer (ldquoNSOrdquo) to
ldquosearch them and everything in their possession including any land vehicle for weapons
and explosive substancesrdquo121 In addition when leaving the protected area people must
allow NSOs to ldquosearch them and everything in their possession including any land
vehicle for Category I II or III nuclear materialrdquo122 People are not permitted to enter or
leave a protected area unless these searches are carried out123 The Nuclear Security
Regulations provide for the method of search including ldquoa hand-held scanner a walk-
through scanner or any similar devicerdquo124 In addition if an NSO determines it
necessary a frisk search can be carried out by a person of the same sex125
I have been informed that the area outside of but adjacent to the ldquoprotected areardquo is
referred to as the ldquocontrolled areardquo This area includes roadways and waterways within
the nuclear facilityrsquos property boundaries adjacent to or in close proximity to the nuclear
power plantrsquos protected area and may be generally accessible to the public
As a result of the September 11 2001 terrorist attacks the Nuclear Security Regulations
were amended to require that high security nuclear facilities maintain an on-site armed
Nuclear Response Force (ldquoNRFrdquo)126 The NRF is composed of specialized NSOs
Section 32 of the Nuclear Security Regulations requires the NRF to be capable of making
an effective intervention taking into account the threat
121 Ibid s 27(1)(a)122 Ibid s 27(1)(b)123 Ibid s 27(2)124 Ibid s 27(5)(a)125 Ibid s 27(5)(b)126 Ibid s 32
50
Members of the NRF are mandated by the Nuclear Security Regulations to be ldquotrained in
the use of firearms authorized to carry firearms in Canada and qualified to use themrdquo127
However to satisfy this requirement the NRF resorts to the PWPA since the federal
regulations do not authorize the NRF to carry firearms without a licence However
under s 2(1) of the PWPA NSOs are designated as ldquoguardsrdquo with the powers of a peace
officer most significantly to carry and use firearms without having to be licensed128
Such a designation also enables the OPG to acquire and dispose of firearms
In the consultations I had with the OPG and the CNSC they advised me that NSOs
receive training equivalent to Canadian police standards and that NRF officers receive
training equivalent to federal and provincial police tactical team requirements
Another aspect of the PWPA used to secure nuclear power plants relates to powers
exercised by NSOs in ldquocontrolled areasrdquo The federal regulations do not provide the
NSOs with any power to demand identification within this area However pursuant to
the PWPA as appointed ldquoguardsrdquo the NSOs have the power to demand identity
verification in the controlled area They also have the authority to arrest anyone who
obstructs NSOs in the performance of their duties under the PWPA
In addition to using the PWPA to secure the controlled areas I have been advised by the
OPG that NSOs use powers pursuant to the PWPA to secure areas within 100 metres of a
nuclear facilityrsquos property line immediately adjacent to the controlled area These powers
are exercised under the broad language of the PWPA regarding ldquoapproaches to public
127 Ibid s 1 (on-site nuclear response force definition)128 Section 11707 of the Criminal Code exempts peace officers from licensing requirements for possessing firearms and other prohibited and restricted weapons
51
worksrdquo This is an illustration of the problem with the vagueness of this language in the
legislation As these powers are exercised on public land they could be challenged as a
potential infringement on individual rights and freedoms However I have been advised
that there have been no such incidents to date The need to ensure the security of these
facilities must be taken into the balance
NSOs must be able to monitor and control access to the controlled areas and areas close
to a nuclear power plantrsquos property line This provides for a more secure perimeter
around these facilities They need authority to challenge individuals acting in a suspicious
manner or conducting surveillance of nuclear facilities The OPG has informed me that
areas outside a nuclear facilityrsquos property line immediately adjacent to the controlled
area are still close enough to take advantage of the short distance to conduct intelligence
using high-powered surveillance equipment These nuclear power plants are not located
on isolated islands and are therefore vulnerable Both the Pickering Nuclear Generating
Station and the Darlington Nuclear Generating Station operate within major urban areas
being 30 km and 60 km east of downtown Toronto respectively I am advised that
previous events such as ldquoThe Toronto 18rdquo129 have shown that those intent on targeting
vital infrastructure such as power generating facilities often use reconnaissance and
intelligence gathering as precursor tactics
Recommendation
If the PWPA is to be repealed it is imperative that those who secure our nuclear and
power generating facilities be given the requisite specific legislative powers to do so
129 See for example ldquoLast 2 Toronto 18 accused found guiltyrdquo CBC News (23 June 2010) online cbcca lthttpwwwcbccanewscanadatorontostory20100623toronto-18-verdicthtmlgt
52
The source for these powers should be set out in the federal Nuclear Security
Regulations However if this is not a desired option the Government of Ontario must
consider specific legislation setting out the specific powers required to properly secure
these facilities and the specific location in which these powers can be exercised Such
legislation should not be passed without proper notice consultation and legislative
debate
53
SECTION 6 CONCLUSION
The PWPA was enacted in 1939 to support the war effort At the time the protection of
Ontariorsquos hydroelectric facilities from sabotage was of particular concern Since then the
PWPA has been used to provide the legal foundation for the powers exercised by the
police in providing court security and even more recently by the OPG in securing
nuclear power facilities In June 2010 the PWPA was used to provide powers to secure
intergovernmental conferences The vagueness of the PWPA permits it to be used in
situations when it is arguably not necessary and potentially abusive In my view the
PWPA has been used for purposes beyond its original intent
The time for the PWPA seems to have passed If the Government of Ontario enacts as I
have suggested specific legislation to provide for courthouse security and power
generating infrastructure security it would appear that there is no longer a need for the
PWPA I am also mindful of the existence of counter-terrorism and emergencies
legislation to deal with these situations as they arise
ldquoIn determining the boundaries of police powers caution is required to ensure the proper
balance between preventing excessive intrusions on an individualrsquos liberty and privacy
and enabling the police to do what is reasonably necessary to perform their duties in
protecting the publicrdquo130 The overly broad and vague language of the PWPA does not
strike this required balance with individual rights and freedoms
The late Justice Jackson of the United States Supreme Court stated that every
emergency power once conferred ldquolies about like a loaded weapon ready for the hand of
130 R v Clayton [2007] 2 SCR 725 at 742
54
any authority that can bring forward a plausible claim of an urgent needrdquo131 The need to
protect the public must be balanced with the requirement to preserve fundamental rights
and freedoms
Yet at the same time ldquoCanadians are entitled to demand the best public order policing
possible from their governmentrdquo132 There is no question that we live in a different world
post 911 We live in difficult times with constant threats both domestically and from
abroad The police clearly need to be given adequate powers to carry out their duties
The police use their expertise on a daily basis to assess the powers they require In
instances when they take action that exceeds their powers their actions are examined by
various mandated bodies This process I believe results in the proper balance between
police powers and individual rights and freedoms Therefore any legislation that purports
to grant special police powers must be specific and direct and developed in consultation
with stakeholders and tested through thorough debate in our transparent democratic
system
131 Korematsu v United States 323 US 214 (1944)132 Supra note 26 p 8
55
SECTION 1 INTRODUCTION
A Terms of Reference and Scope of Review
In September 2010 I was retained by the Ministry of Community Safety and Correctional
Services to conduct a review of the Public Works Protection Act (the ldquoPWPArdquo)1
The Terms of Reference2 for this review provide that I am to identify areas of the PWPA
for reform and if appropriate make specific recommendations for amendment or repeal
(the ldquoReviewrdquo) As part of the process of conducting this Review I was requested to take
into account the historical context of the PWPA and examine its current uses I was also
requested to undertake discussions with key stakeholder groups and other interested
parties3 and to review other relevant reports
The focus of this Review as stated in the Terms of Reference is ldquoto develop a foundation
for future legislationrdquo
B Factual Background
On June 19 2008 Prime Minister Stephen Harper announced that Huntsville Ontario
would host the G8 Summit scheduled for June 25 - 26 2010
On December 7 2009 the Prime Minister announced that Toronto Ontario would host
the G20 Summit scheduled for June 26 - 27 2010 It was not until February 19 2010
that the specific site of the G20 Summit was announced to be the Metro Toronto
Convention Centre in downtown Toronto
1 RSO 1990 c P552 Attached as Appendix 1 is a copy of the Terms of Reference3 Attached as Appendix 2 is a list of all key stakeholder groups and interested parties with whom I met during the course of this Review
1
An Integrated Security Unit (ldquoISUrdquo) was established in 2008 to deal with the security
issues relevant to the G8 and later the G20 Memorandums of understanding entered into
between the Royal Canadian Mounted Police (ldquoRCMPrdquo) and its ISU partners for both
Summits detailed that the RCMP was to be responsible for protecting Internationally
Protected Persons (ldquoIPPsrdquo) as well as the defined ldquocontrolled access zonesrdquo and the other
partners were to be responsible depending on whether it was the G8 or G20 for the areas
immediately adjacent to the controlled access zones referred to as the ldquointerdiction
zonesrdquo For the G8 Summit the Ontario Provincial Police (ldquoOPPrdquo) was to be responsible
for the interdiction zone For the G20 Summit the Toronto Police Service (ldquoTPSrdquo) was
responsible for the interdiction zone
It was TPSrsquos concern regarding its legal authority to establish and secure the interdiction
zone for the G20 Summit which resulted in the use of the PWPA
The TPS requested that the Ontario Government enact a regulation pursuant to the
PWPA4 which would designate the interdiction zone as a ldquopublic workrdquo and thereby give
the TPS the powers granted by the PWPA The regulation enacted pursuant to the PWPA
O Reg 23310 and the exercise by the police of their powers provided by this legislation
triggered this Review
4 Attached as Appendix 3 is a copy of the May 12 2010 letter
2
SECTION 2 THE PUBLIC WORKS PROTECTION ACT
A History of the Public Works Protection Act
The PWPA was enacted in 1939 It in addition to other legislation was passed during an
emergency session of the Ontario Legislative Assembly in response to Canadarsquos entry
into World War II and was considered important in supporting the war effort Lieutenant
Governor Albert Matthews in his throne speech outlined the context in which the
legislation was being passed5
We meet today under circumstances of the utmost gravity The possibility of war in which we are now engaged was fully realized and debated by you at the last session when you passed unanimously a resolution calling in such event for the complete mobilization of all our resources
Legislation calculated to give effect to the determination then expressed will be immediately submitted to you You will be asked to pass measures designed to increase agricultural and industrial production and for the protection of our vital public works and services (emphasis added)
Reports of the legislative debates held in 19396 indicate that protecting the provincersquos
hydroelectric facilities from sabotage was of particular concern The Ontario Government
had asked the Federal Government to provide members of the Canadian military to guard
these works The Federal Government refused and the PWPA was the provincial
response Concerns about restriction on civil liberties were raised in relation to another
bill that would have required permits for the holding of public meetings in public places
however no such concerns were raised in relation to the PWPA The only constitutional
issue raised in debate regarding the PWPA related to whether the Federal Government
was responsible for providing the necessary guards to protect public works as opposed to
requiring provinces to establish ldquoprivate armiesrdquo
5 Ontario Speech of the Throne 20th Parl 4th Sess (19 September 1939)6 Attached as Appendix 4 is a copy of the reports of the legislative debates Note This is the best available copy
3
The PWPA has undergone only minor amendments since 1939 Shortly after it was
enacted two Orders in Council were passed designating areas around the Canadian
General Electric Company Limited and The Canadian Car and Foundry Company as
ldquopublic worksrdquo In 1950 a provision regarding the recovery of certain fines was deleted
In 1960 the provision regarding the appointment of guards was moved from near the end
of the PWPA to closer to the beginning In 1972 the PWPA was amended to reassign
certain responsibilities from the Attorney General to the Solicitor General It was
amended again in 1989 to increase the fine for an offence under the PWPA from $100 to
$500 There have also been some other minor changes of wording since 1939
B Current Uses of the Public Works Protection Act
Although there is legislation in other provinces that defines ldquopublic worksrdquo for other
purposes there is no jurisdiction in Canada which has legislation similar in nature to the
PWPA
As the PWPA was enacted in 1939 as an emergency wartime statute it is perhaps not
surprising that it is relied upon today in only limited circumstances Prior to the G20 the
PWPA had only been relied upon to conduct searches at courthouses in the context of
providing courthouse security This use of the PWPA was upheld by the courts7 In
addition since September 2001 the PWPA has been used by Ontario Power Generation
(ldquoOPGrdquo) to empower its guards to secure its nuclear and non-nuclear power generating
facilities
7 See for example R v Campanella [2002] OJ No 5104 (SCJ) affrsquod [2005] OJ No 1345 (CA) and R v SS [2005] OJ No 5002 (SCJ)
4
C Outline of the Public Works Protection Act
Given the fact that the PWPA is a short statute I am reproducing it here in its entirety for
ease of reference
The Public Works Protection Act
Definitions 1 In this Act
ldquoguardrdquo means a guard appointed under this Act (ldquogardienrdquo)
ldquohighwayrdquo means a common or public highway or a part thereof and includes any street bridge and any other structure incidental thereto and any part thereof (ldquovoie publiquerdquo)
ldquopublic workrdquo includes
(a) any railway canal highway bridge power works including all property used for the generation transformation transmission distribution or supply of hydraulic or electrical power gas works water works public utility or other work owned operated or carried on by the Government of Ontario or by any board or commission thereof or by any municipal corporation public utility commission or by private enterprises
(b) any provincial and any municipal public building and (c) any other building place or work designated a public work by the Lieutenant
Governor in Council (ldquoouvrage publicrdquo) RSO 1990 c P55 s 1
Guards appointment 2(1)For the purpose of protecting a public work guards may be appointed by (a) the Solicitor General
(b) the Commissioner of the Ontario Provincial Police Force (c) any inspector of the Ontario Provincial Police Force
(d) the head or deputy head of the municipal council or the chief of police of the municipality in which the public work is located or the person acting in the place or stead of the head or deputy head
(e) the chair or other person who is the head of a board commission or other body owning or having charge of the public work or the person acting in the place or stead of the chair or other person
Powers of guard (2)Every person appointed as a guard under this section has for the purposes of this
Act the powers of a peace officer
5
Duties of guard (3)Subject to the regulations and to any special direction of the Solicitor General or
the Commissioner of the Ontario Provincial Police Force every guard shall obey all directions of the person appointing him or her any inspector of the Ontario Provincial Police Force the chief of police of the municipality in which is located the public work that he or she is protecting and the person who is in charge of the protecting of the public work
Breach of duty of guard (4)Every guard who (a) neglects or refuses to obey a direction that he or she is required to obey under
subsection (3) (b) fails in any manner to carry out his or her duties as guard
(c) leaves the location to which he or she is assigned as guard or ceases to act as guard without leave of any of the persons mentioned in subsection (3) or
(d) otherwise conducts himself or herself in a manner not consistent with his or her duties as guard
is guilty of an offence and on conviction is liable to a fine of not more than $500 or to imprisonment for a term of not more than two months or to both RSO 1990 c P55 s 2
Powers of guard or peace officer 3A guard or peace officer (a) may require any person entering or attempting to enter any public work or any
approach thereto to furnish his or her name and address to identify himself or herself and to state the purpose for which he or she desires to enter the public work in writing or otherwise
(b) may search without warrant any person entering or attempting to enter a public work or a vehicle in the charge or under the control of any such person or which has recently been or is suspected of having been in the charge or under the control of any such person or in which any such person is a passenger and
(c) may refuse permission to any person to enter a public work and use such force as is necessary to prevent any such person from so entering RSO 1990 c P55 s 3
Statement under oath to be conclusive evidence 4For the purposes of this Act the statement under oath of an officer or employee
of the government board commission municipal or other corporation or other person owning operating or having control of a public work as to the boundaries of the public work is conclusive evidence thereof RSO 1990 c P55 s 4
Refusal to obey guard etc 5(1)Every person who neglects or refuses to comply with a request or direction
made under this Act by a guard or peace officer and every person found upon a public
6
work or any approach thereto without lawful authority the proof whereof lies on him or her is guilty of an offence and on conviction is liable to a fine of not more than $500 or to imprisonment for a term of not more than two months or to both
Arrest (2)A guard or peace officer may arrest without warrant any person who neglects
or refuses to comply with a request or direction of a guard or peace officer or who is found upon or attempting to enter a public work without lawful authority RSO 1990 c P55 s 5
Regulations 6The Lieutenant Governor in Council may make regulations
(a) providing for the organization co-ordination supervision discipline and control of guards
(b) defining the areas that constitute approaches to public works either generally or with regard to a particular public work
(c) respecting any matter necessary or advisable to carry out effectively the intent and purpose of this Act RSO 1990 c P55 s 6
1 Discussion of Key Sections
(a) Definition of ldquoPublic Workrdquo
Section 1 defines ldquopublic workrdquo very broadly There are at least three classes of public
works The first class includes certain transportation infrastructure (ldquorailway canal
highway bridgerdquo) energy infrastructure (ldquopower works including all property used for
the generation transformation transmission distribution or supply of hydraulic or
electrical power gas worksrdquo) other public utilities (ldquowater works public utilityrdquo) and
other ldquoworksrdquo generally (ldquoor other workrdquo) This first class of public works may be
publicly or privately owned (ldquoowned operated or carried on by the Government of
Ontario or by any board or commission thereof or by any municipal corporation public
utility commission or by private enterprisesrdquo)
The second class of defined ldquopublic worksrdquo includes all provincial and municipal
buildings ldquoPublic buildingrdquo is not defined It would appear to clearly include buildings
7
such as the Legislative Assembly courthouses and city halls and likely includes
provincially or municipally owned buildings used for governmental purposes It would
also seem to include provincially or municipally owned buildings used for other
purposes such as libraries for example
The third class of ldquopublic worksrdquo includes any other building place or work designated
as a public work by the Lieutenant Governor in Council The word ldquoplacerdquo would appear
to be a very broad term that could include a public park for example The area
designated by O Reg 23310 fell into this class of ldquopublic workrdquo
(b) Appointment and Powers of Guards and Peace Officers
Section 2 of the PWPA provides for the appointment of ldquoguardsrdquo the powers and duties
of peace officers and guards and the penalties for any breach of duty by these peace
officers and guards The PWPA provides that anyone who is a head of a board
commission or other body having charge over a public work can appoint a guard This is
very broad and arguably allows for the appointment of a private army by someone
ldquohaving charge ofrdquo a public work whoever that may be Pursuant to s 2(2) the ldquoguardsrdquo
have the same powers as a ldquopeace officerrdquo
Section 3 sets out the powers a guard or peace officer acquire pursuant to the PWPA
including that a guard may require people entering or approaching a public work to
identify themselves and to state the purpose for which they desire to enter the public
work In addition the guard or peace officer may search without warrant any person or
vehicle entering or attempting to enter a public work The guard or peace officer can
8
refuse to permit a person to enter a public work and can use as much force as necessary in
this endeavour
(c) Boundaries of Public Work
Section 4 provides that a statement under oath by an officer or employee of the person or
entity operating or having control of a public work regarding the boundaries of the public
work serves as conclusive evidence with respect to the boundaries
(d) Offence Power of Arrest
Section 5 provides that any person who neglects or refuses to comply with a request or
direction made by a guard or peace officer is guilty of an offence In addition a person
who enters a public work or an approach to a public work without lawful authority is
guilty of an offence A person found guilty of an offence is liable to a fine of not more
than $500 andor imprisonment of not more than two months A guard or peace officer
has the power to arrest without warrant any person who refuses to comply with a request
or direction of a guard or peace officer and who enters or attempts to enter a public work
without lawful authority
(e) Regulations
Section 6(b) provides that the Lieutenant Governor in Council may define the areas that
constitute approaches to public works while s 6(c) permits regulations to be made
regarding any matter necessary to carry out the intent and purpose of the PWPA
D Events Leading to Passage of O Reg 23310
There was no apparent reference to the possible use of the PWPA until fairly late in the
planning process for the security for the G20 Summit The Province of Ontario originally
9
attempted to obtain support for its security measures through reliance on a federal statute
the Foreign Missions and International Organizations Act (ldquoFMIOArdquo) which provides
that the RCMP can take ldquoappropriate measuresrdquo to ensure the proper functioning of an
intergovernmental conference ldquoin a manner that is reasonable in the circumstancesrdquo8
On May 7 2010 John Burke Deputy Minister of Community Safety and Correctional
Services of Ontario wrote to William Baker Deputy Minister of Public Safety Canada9
stating that security would be enhanced by the existence of an agreement pursuant to s
101(4) of the FMIOA which provides that the Federal Minister of Public Safety may
enter into arrangements with the government of a province concerning the responsibilities
of members of the RCMP and provincial municipal police forces with respect to
ensuring security for the proper functioning of a conference
On June 11 2010 the Provincial Deputy Minister received a reply10 from the Federal
Deputy Minister indicating that such an agreement would not be required for the
Summits since ldquothe current suite of powers and authorities that peace officers possess at
common law or by virtue of any other federal or provincial Act or regulation were
sufficient for the G8 and G20 Summitsrdquo
The Federal Deputy Minister was clear that in his view the police had sufficient authority
at common law and in statute to secure these conferences Similarly the OPP were of the
view that it was not necessary for the police forces to have any additional police powers
8 SC 1991 c 41 s 101(2) Attached as Appendix 5 is a copy of selected sections of the FMIOA 9 Attached as Appendix 6 is a copy of the May 7 2010 letter10 Attached as Appendix 7 is a copy of the letter received on June 11 2010
10
other than those already conferred by virtue of common law and statute (excluding the
PWPA) in order to secure the interdiction zones for the Summits
On May 12 2010 Chief William Blair of the TPS wrote to the Honourable Rick
Bartolucci Minister of Community Safety and Correctional Services11 stating that a
ldquocornerstonerdquo of the TPS security plan for the G20 Summit would be the establishment of
a security perimeter in an area around the Metro Toronto Convention Centre The
purpose of this security perimeter as explained in the letter was to ldquoensure the safety and
security of those attending the Summit the Summit site itself and people and property
within the area close to the Summit siterdquo Chief Blair indicated that the TPS would rely
upon the authority granted to it pursuant to the common law and if certain conditions are
met the FMIOA12 to establish and control the security perimeter However he believed
that the provisions of the PWPA ldquowould also offer legal support for the extraordinary
security measuresrdquo he believed would be necessary Chief Blair therefore requested ldquothe
Lieutenant Governor in Council to designate the area of or highways within the intended
security perimeter as a public work for the period from June 21 2010 through the end of
the Summit on June 27 2010rdquo A detailed description of the area requested to be
designated as a public work was provided to Minister Bartolucci as well as an aerial
photograph of the area
I am not aware that any organization publicly questioned the inherent police power to
erect fences defining the interdiction zone The Canadian Civil Liberties Association
11 See Appendix 312 This probably is in reference to s 101(4) of the FMIOA which provides the authority for the Minister of Public Safety and Emergency Preparedness to enter into arrangements with the government of a province concerning the responsibilities of members of the RCMP and members of the provincial and municipal police forces with respect to ensuring the security for the proper functioning of an intergovernmental conference
11
(ldquoCCLArdquo) published a document entitled ldquoProtecting civil liberties and human rights at
the G20 statement of concernsrdquo on May 21 201013 In this document the CCLA
expressed concern with the size of the security perimeter ldquoParticularly where there is a
primary fence to ensure safety around conference venues and delegate hotels any further
restrictions on mobility or protest must be fully and carefully justifiedrdquo14 However the
CCLA supported ldquothe overall goal of ensuring that the G20 is conducted in a manner that
is safe for delegates protesters and Toronto residents in generalrdquo15 and noted the
RCMPrsquos authority under the FMIOA There was no doubt expressed by the CCLA
concerning the power of police to erect security fences
By letter dated June 15 201016 Minister Bartolucci wrote to Chief Blair acknowledging
the request and stating in part
I agree that there are various sources of legal authority to support the security perimeter I also recognize the desirability of having additional sources of legal authority to ensure clarity regarding the ability of the Toronto Police Service to take the steps that it will be taking Accordingly I am pleased to inform you that a regulation has been made under the PWPA in response to your request
The Minister informed Chief Blair that O Reg 23310 had been filed with the Registrar
of Regulations and would come into force on June 21 2010 and would be revoked as of
June 28 2010 The area requested by Chief Blair to be designated as a ldquopublic workrdquo
was so designated in O Reg 23310
13 Canadian Civil Liberties Association Protecting civil liberties and human rights at the G20 statement of concerns May 21 2010 online Canadian Civil Liberties Association lthttpcclaorgwordpresswp-contentuploads201005G20-CCLA-Statement-of-Concernspdfgt14 Ibid p 415 Ibid p 316 Attached as Appendix 8 is a copy of the June 15 2010 letter
12
Four days earlier on June 11 2010 Mike McDonell the Assistant Commissioner of the
RCMP sent a letter to Chief Blair17 containing a thorough review of the statutory sources
of the RCMPrsquos duties and powers to secure intergovernmental conferences Assistant
Commissioner McDonell outlined the police authority to fully secure the G8 and G20
Summits
More specifically in relation to the Summits the RCMP will be taking measures to fulfill duties related to the protection of Internationally Protected Persons (IPPrsquos) that befall police in general and the RCMP in specific The official visit of the head of state or high ranking dignitary of a foreign country is an event that frequently engenders a real or apprehended threat to the preservation of peace which demands the adoption of proper and reasonable security measures in and by the host country
Furthermore Canada is a signatory of the United Nations Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons Including Diplomatic Agents In that regard Canada has specifically adopted laws requiring peace officers to protect IPPs as defined in section 2 of the Criminal Code in accordance with its international obligationshellip
Legal authorities also permit the RCMP to collaborate with other police forces such as the OPP in the fulfillment of its duties including in relation to securing the perimeter Such collaboration is essential in light of concurrent mandates of policing partners particularly in relation to the legal duties to preserve the peace and protect life and property
E O Reg 23310
On June 2 2010 Cabinetrsquos Legislation and Regulations Committee passed O Reg
23310 It was signed by the Lieutenant Governor on June 3 2010 and published on June
16 2010 on e-Laws a website maintained by the Government of Ontario not frequently
accessed by the public This website provides access to official copies of Ontariorsquos
statutes and regulations O Reg 23310 came into force on June 21 2010 and was
17 Attached as Appendix 9 is a copy of the June 11 2010 letter
13
revoked on June 28 2010 It was not published in The Ontario Gazette18 until July 3
2010 after it had already been revoked Section 23(2) of Ontariorsquos Legislation Act
200619 provides that a regulation is not effective against a person before the earliest of
when the person has actual notice of it the last instant on the day on which it is published
on the e-Laws website or the last instant of the day on which it is published in the print
version of The Ontario Gazette As a result though the technical requirements for
providing notice of O Reg 23310 were met I have concerns whether adequate notice
was given to the public especially in light of the fact that the regulation was not
published in The Ontario Gazette until it had already been revoked
The regulation set out the area where the security fence was to be erected and designated
that area as a ldquopublic workrdquo which then called into play all the powers provided by the
PWPA
ONTARIO REGULATION 23310
made under the
PUBLIC WORKS PROTECTION ACT
Made June 2 2010Filed June 14 2010
Published on e-Laws June 16 2010Printed in The Ontario Gazette July 3 2010
DESIGNATION OF PUBLIC WORKS
Designation 1 The following are designated as public works for the purposes of the Act 1 Everything described in clause (a) of the definition of ldquopublic workrdquo in section
1 of the Act that is located in the area described in Schedule 1 including without limitation and for greater certainty every sidewalk in that area
2 The places described in paragraphs 1 2 and 3 of Schedule 2
18 The Ontario Gazette contains Ontariorsquos legal notices and regulations19 SO 2006 c 21 Sched F
14
Revocation 2 This Regulation is revoked on June 28 2010
Commencement 3 This Regulation comes into force on the later of June 21 2010 and the day
it is filed SCHEDULE 1
AREA REFERRED TO IN PARAGRAPH 1 OF SECTION 1
The area in the City of Toronto lying within a line drawn as follows
Beginning at the curb at the southeast corner of Blue Jays Way and Front Street West then north to the centre of Front Street West then east along the centre of Front Street West to the east curb of Windsor Street then north along the east curb of Windsor Street to the centre of Wellington Street then east along the centre of Wellington Street to the centre of Bay Street then south along the centre of Bay Street to a point directly opposite the north wall of Union Station then west along the exterior of the north wall of Union Station to the centre of York Street then south along the centre of York Street continuing east of the abutments under the railway overpass and continuing south along the centre of York Street to the centre of Bremner Boulevard then west along the centre of Bremner Boulevard to the east curb of Lower Simcoe Street then south along the east curb of Lower Simcoe Street to the north curb of Lake Shore Boulevard West then west along the north curb of Lake Shore Boulevard West to the south end of the walkway that is located immediately west of the John Street Pumping Station and runs between Lake Shore Boulevard West and the bus parking lot of the Rogers Centre then north along the west edge of that walkway to the bus parking lot of the Rogers Centre then west along the south edge of the bus parking lot of the Rogers Centre to the west edge of the driveway running between the parking lot and Bremner Boulevard then north along the west edge of that driveway to the north curb of Bremner Boulevard then west along the north curb of Bremner Boulevard to the east curb of Navy Wharf Court then north along the east curb of Navy Wharf Court to the southwest point of the building known as 73 Navy Wharf Court then east along the exterior of the south wall of that building then north along the exterior of the east wall of that building to the curb of Blue Jays Way then north along the east curb of Blue Jays Way to the curb at the southeast corner of Blue Jays Way and Front Street West
SCHEDULE 2DESIGNATED PLACES REFERRED TO IN PARAGRAPH 2 OF SECTION 1
1 The area within the area described in Schedule 1 that is within five metres of a line drawn as follows Beginning at the south end of the walkway that is located immediately west of the John Street Pumping Station and runs between Lake Shore Boulevard West and the bus parking lot of the Rogers Centre then north along the west edge of that walkway to the bus parking lot of the Rogers Centre then west along the south edge of the bus parking lot of the Rogers Centre to the west edge of the driveway running between the parking lot and Bremner
15
Boulevard then north along the west edge of that driveway and ending at Bremner Boulevard
2 The area within the area described in Schedule 1 that is within five metres of a line drawn as follows
Beginning at the southwest point of the building known as 73 Navy Wharf Court then east along the exterior of the south wall of that building then north along the exterior of the east wall of that building and ending at the curb of Blue Jays Way
3 The below-grade driveway located between Union Station and Front Street West and running between Bay Street and York Street in the City of Toronto
F Information Given to Public Regarding Security Protocol
Attempts were made to inform the public about the security measures that would be in
place leading up to and throughout the G20 The City of Toronto in consultation with
the ISU produced an information article20 and flyers21 No mention is made in the article
or flyers of the PWPA or O Reg 23310 and the powers given to the police The City of
Toronto also prepared an advertisement which appeared in local newspapers22 The
original version of the advertisement made no reference to the fact that people would be
subject to a search when attempting to access the security perimeter although reference
was made to the requirement to show identification and to have a valid purpose for
entering the restricted area A later version of the advertisement included additional text
advising that anyone requesting access to the security perimeter may be subject to a
search However just as with the article and flyers no specific mention was made of the
PWPA or O Reg 23310
20 A million copies of the newsletter Our Toronto which contained an article entitled ldquoWhat to expect during the G20 ndash June 26 amp 27 2010rdquo were delivered to homes in the City of Toronto21 Approximately 10000 flyers were sent to homes and businesses within the affected area The flyercontained general information about security and the anticipated effects on traffic22 The advertisement appeared in the Toronto Star Toronto Sun and Metroland community papers
16
In the days leading up to and throughout the G20 Summit there was apparently a
misunderstanding on the part of the police regarding a purported ldquofive-metre rulerdquo This
confusion likely emanated from the ldquofive-metresrdquo referenced in Schedule 2 of O Reg
23310 However the purpose of Schedule 2 was to designate as ldquopublic work(s)rdquo three
specific private property locations on which the security fence was to be erected that were
not ldquopublic worksrdquo The remainder of the fence was on public sidewalks and streets
which are ldquopublic worksrdquo To ensure that the fence was located on a ldquopublic workrdquo the
drafters designated the area within five metres of the security fence in these three
locations as a ldquopublic workrdquo23 Unfortunately the wording of Schedule 2 was very
cumbersome and the relationship between the area defined in Schedule 1 and the five-
metre reference in Schedule 2 was difficult to understand
Because of this confusion unfortunately the message was conveyed that the regulation
provided for a five-metres zone outside the entire security fence and that therefore the
PWPA applied to this entire area24 The media reported during the G20 summit that the
police had ldquosweepingrdquo powers pursuant to the PWPA within five-metres outside of the
exterior security fence25 O Reg 23310 did not provide the police such authority
23 Attached as Appendix 10 is a copy of a map showing the three specific areas designated in Schedule 2 of O Reg 2331024 Jennifer Yang ldquoJust being near the G20 security zone can get you arrestedrdquo Toronto Star (25 June 2010) online thestarcom lthttpwwwthestarcomnewsgtatorontog20summitarticle828498--just-being-near-the-g20-security-zone-can-get-you-arrestedgt25 David Rider et al ldquoDalton McGuinty Bill Blair defend quiet boost in arrest powersrdquo Toronto Star (26 June 2010) online thestarcom lthttpwwwthestarcomnewsgtatorontog20summitarticle828974--dalton-mcguinty-bill-blair-defend-quiet-boost-in-arrest-powersgt
17
SECTION 3 COMMENTARY
A Public Policy Considerations
There are some overarching public policy considerations which affect the issues I have
been asked to address in the Terms of Reference
As stated earlier the legislation was the product of emergency World War II concerns
related to the possibility of enemy sabotage of important infrastructures The legislative
debates in September of 1939 were particularly concerned with the provincersquos
hydroelectric facilities However notwithstanding these apparently specific concerns
when drafted the definition of ldquopublic workrdquo is extraordinarily broad and from a policy
standpoint raises questions of overbreadth especially given the ability to designate
almost anything a public work In a mere definition section s 1 of the legislation allows
the Lieutenant Governor in Council to designate ldquoany other building place or workrdquo as a
ldquopublic workrdquo However taken to its logical conclusion an entire city or more could be
designated as a ldquopublic workrdquo The definition of ldquopublic workrdquo includes ldquoany provincial
and any municipal public buildingrdquo but ldquopublic buildingrdquo is not further defined thereby
creating an element of uncertainty as to the specific provincial and municipal buildings
captured by this definition While perhaps extreme measures in times of war require
flexibility in all other circumstances legislation of this nature requires limitations and a
more specialized approach
The expression ldquoprivate armyrdquo was used in the Ontario legislative debate in 1939
Theoretically at least private armies could be created through the use of the ldquoguardrdquo
appointing authority by the many individuals who are authorized to appoint guards
pursuant to the PWPA This authority was apparently in response to the Federal
18
Governmentrsquos refusal to assume through the Defence Department the responsibility of
guarding utilities and industries essential to the war effort While such a result might not
have been contemplated in a parliamentary democracy it is clearly unwise to leave such
a possibility open
Section 3 of the PWPA provides in part that a guard or a peace officer
(a) may require any person entering or attempting to enter any public work or any approach thereto to furnish his or her name and addresshellipand to state the purpose for which he or she desires to enter the public work in writing or otherwise
The primary problem I see with this section is the vagueness of the term ldquoapproach
theretordquo An approach could begin at a considerable distance from the public work
Section 6(b) also provides for the making of regulations ldquodefining the areas that
constitute approaches to public works either generally or with regard to a particular
public workrdquo
In addition s 3(b) of the PWPA provides that a guard or peace officer ldquomay search
without warrant any person entering or attempting to enter a public workrdquo This section
does not permit any person to abandon any attempt to enter a public work in order to
avoid being subjected to a warrantless search Such conduct is adopted by persons who
decide not to enter a secured courthouse in order to avoid a warrantless search
Section 4 provides that for the purposes of the PWPA the statement under oath made by
persons engaged in the operation of a public work ldquoas to the boundaries of the public
work is conclusive evidence thereofrdquo Section 4 should be considered with s 5(1) which
provides that ldquoevery person found upon a public work or any approach thereto without
lawful authority the proof whereof lies on him or her is guilty of an offencehellip(emphasis
19
added)rdquo The provision in s 4 that ldquothe statement under oathhellipis conclusive evidence
thereofrdquo appears to remove from a courtrsquos consideration what could be a legitimate
dispute as to the boundaries of a public work or the approach thereto Furthermore the
apparent reversal of the onus of proof regarding lawful authority to be found in a public
work or an approach found in s 5 is also troublesome from a policy and legal point of
view
Accordingly if utilized to the extreme many government officials could appoint many
private armies to restrict access to many (in fact any) public places where the mere
statement under oath by the private guard of the boundaries of the areas under restricted
access is conclusive proof thereof Such potential for abuse is beyond troubling to say
the least
B Review of other Public Reports
As is evident from the foregoing discussion many issues arise regarding the operation of
the PWPA in todayrsquos context These considerations and others also formed the basis of
concerns raised in public reports which I was asked to review
1 Reports of the Canadian Civil Liberties Association
The CCLA preliminary G20 report26 dealt with most of the police related events that
occurred in Toronto during the G20 conference during the weekend of June 26th and 27th
2010 I will only make reference to a few portions of the report that deal with the Terms
of Reference
26 Canadian Civil Liberties Association A Breach of the Peace ndash A Preliminary Report of Observations During the 2010 G20 Summit June 29 2010 online Canadian Civil Liberties Association lthttpcclaorgwordpresswp-contentuploads201006CCLA-Report-A-Breach-of-the-Peace-Preliminary-report-updated-July-8pdfgt
20
The report of the CCLA called for the repeal or significant amendment to the PWPA ldquoto
meet basic constitutional standardsrdquo27 The CCLA ldquosuggests that the broad police powers
granted under the Act are inconsistent with current Charter requirementsrdquo28
I agree with the observation of the CCLA that the provisions of the PWPA led to a ldquolack
of clarity as to the scope of the search and seizure powersrdquo29 which created many
difficulties and conflicts that probably could have been avoided I would also certainly
agree with a conclusory comment in this preliminary report that ldquoit is the duty of police
officers to act with fairness and equanimity toward all citizens in accordance with the law
of the country The presumption of innocence and the protection against arbitrary arrests
and detention are at the core of a commitment to justicerdquo30
The CCLA in partnership with the National Union of Public Employees organized
public hearings for two days in Toronto and one day in Montreal in November of 2010
which they referred to as a Citizens Inquiry The Citizens Inquiry heard from 63 members
of the public who had witnessed policing incidents or had been detained Several lawyers
and academics also participated in the hearing and offered commentary on the events of
the G20 from a legal or policing perspective including issues related to the PWPA A
report of the hearings titled ldquoG20 Toronto Breach of the Peace Public Hearingsrdquo was
released on February 28 2011 which also referred to the PWPA31
27 Ibid p 2228 Ibid p 929 Ibid p 1230 Ibid p 2131 Canadian Civil Liberties Association and the National Union of Public and General Employees G20 Toronto Breach of the Peace Public Hearings February 2011 online Canadian Civil Liberties Association lthttpcclaorgwordpresswp-contentuploads201102Breach-of-the-Peace-Final-Reportpdfgt
21
2 The Ontario Ombudsman Report
The Ontario Ombudsman commenced an investigation after receiving complaints relating
to a variety of issues concerning the G20 The Marin Report recognized that ldquotypically
international summits attract protests and protests can turn violent and even deadlyrdquo32
The report therefore does not quarrel with the requirement that a high level of security is
required for such events
The report in my view accurately describes the PWPA as ldquounique in Canada in terms of
the breadth of its reach and the powers it confershellipno other Canadian statute defining
lsquopublic worksrsquo contains provisions similar to those found in Ontariorsquos Actrdquo33
32 Ontario Ombudsman report Investigation into The Ministry of Community Safety and Correctional Servicesrsquo Conduct in Relation to Ontario Regulation 23310 under the Public Works Protection Act ldquoCaught in the Actrdquo by Andreacute Marin (Toronto Ombudsman of Ontario December 2010) online Ombudsman of Ontario lthttpwwwombudsmanoncamedia157555g20final1-enpdfgt (ldquoMarin Reportrdquo) at para 733 Ibid at para 97
22
SECTION 4 POWERS OF THE POLICE
Pursuant to the Terms of Reference I have been asked to consider for future purposes
whether the powers given to peace officers and guards under the PWPA are necessary to
protect public works secure intergovernmental conferences or for any other purposes
To answer that question it is necessary to assess whether the current common law and
statutory regime provide the police with sufficient powers to perform these vital services
A Common Law Powers and Powers Pursuant to Police Services Acts
The police have extensive common law powers that can be used in protecting and
securing intergovernmental conferences and in protecting public works It is necessary to
examine those powers in order to assess whether and what if any additional powers are
needed such as those provided by the PWPA
Of particular assistance in this regard is R v Knowlton34 where the Supreme Court of
Canada considered whether the powers possessed by peace officers at common law and
statute in securing an area for the protection of a foreign dignitary were lawful The
Supreme Court of Canada held that in order for the exercise of peace officer powers to be
lawful the powers must satisfy the two step test set out in R v Waterfield35 First the
power must be in furtherance of a lawful duty Traditional common law peace officer
duties include the preservation of the peace and the prevention of crime These common
law police duties amongst others are now statutorily enshrined in s 42(1) of Ontariorsquos
Police Services Act (and other provincial police services acts)36 The second part of the
test requires an evaluation of whether the conduct of the peace officer was ldquojustifiedrdquo To
34 [1974] SCR 443 [ldquoKnowltonrdquo]35 See for example R v Dedman [1985] 2 SCR 236 RSO 1990 c P15
23
do so one applies the standard of what is reasonably necessary in light of the totality of
the circumstances In evaluating whether the conduct of the peace officer was justified it
is important to consider ldquothe duty being performed the extent to which some interference
with individual liberty is necessary in the performance of that duty the importance of the
performance of the duty to the public good the nature of the liberty being interfered with
and the nature and extent of the interferencerdquo37
In Knowlton police in Edmonton cordoned off an area as part of the security
arrangements for the visit of Premier Kosygin of the USSR Premier Kosygin had been
assaulted in Ottawa a few days prior to his visit to Edmonton Knowlton entered the
secured area questioning the power of the peace officer to prevent his entry He was
arrested without a warrant and charged with obstructing a peace officer in the execution
of his duties Knowlton argued that the peace officer did not have the power to prevent
his entry and was not acting in the execution of his duty
The Supreme Court of Canada emphasized the heightened importance of security when
there are visiting foreign dignitaries38
It is notorious and of common knowledge that the official visit of the head of state or high rank dignitary of a foreign country friendly as either may be is an event that frequently engenders a real or apprehended threat to the preservation of peace and that calls therefore for the adoption of proper and reasonable security measures in and by the host countryhellipThe restriction of the right of free access of the public to public streetshellipwas one of the steps--not an unusual one--which police authorities considered and adopted as necessary for the attainment of the purpose aforesaid In my opinion such conduct of the police was clearly falling within the general scope of the duties imposed upon them
37 R v Mann [2004] 3 SCR 59 at 7938 Supra note 34 at 447-448
24
In addressing the first part of the Waterfield test the Court referenced provisions of the
Alberta Police Act and the Criminal Code and concluded that the conduct of the peace
officers fell within the general scope of the duties imposed upon them for example
preservation of the peace and prevention of crime39
According to the principles which for the preservation of peace and prevention of crime underlie the provisions of s 30 amongst others of the Criminal Code these official authorities were not only entitled but in duty bound as peace officers to prevent a renewal of a like criminal assault on the person of Premier Kosygin during his official visit in Canada In this respect they had a specific and binding obligation to take proper and reasonable steps The restriction of the right of free access of the public to public streets at the strategic point mentioned above was one of the steps--not an unusual one--which police authorities considered and adopted as necessary for the attainment of the purpose aforesaid In my opinion such conduct of the police was clearly falling within the general scope of the duties imposed upon them
In analyzing the second step of the Waterfield test the Court concluded that there was no
evidence indicating the police officers resorted to an unjustifiable use of the powers
associated with the duties imposed on them
The Court in Knowlton recognized broad police powers to cordon off areas as part of the
security arrangements involving internationally protected persons In addition the Court
found that the warrantless arrest in that case was not an unjustifiable or unreasonable use
of powers associated with the police duties to preserve the peace order public safety and
to enforce the law and prevent crime Finally the Court found that peace officers were
duty bound ldquoto prevent a renewal of a like criminal assault on the person of Premier
Kosygin during his official visit in Canadardquo40 Furthermore it stated the closing of public
39 Ibid 40 Ibid at 447
25
streets ldquowas one of the steps -- not an unusual one -- which police authorities considered
and adopted as necessaryrdquo41
The Knowlton decision clearly acknowledged that the police had the duty and authority to
establish and enforce a secured area to protect a foreign dignitary In order to carry out
these duties the police may do what is reasonably necessary in light of the totality of the
circumstances
Though Knowlton was decided prior to the enactment of the Canadian Charter of Rights
and Freedoms (the ldquoCharterrdquo) this does not in my view affect the clear statement by the
Supreme Court of Canada regarding the duty of the police under the common law and the
Alberta Police Act to provide this security While the facts of Knowlton were quite
compelling in relation to the obvious need to provide adequate security for Premier
Kosygin the decision is equally important authority regarding the general responsibilities
of the police at common law and statute in relation to the preservation of the peace
B Other Statutory Powers
1 Criminal Code
Some specific powers are provided to peace officers pursuant to the Criminal Code42
Section 31 gives peace officers the power to arrest an individual for breach of the peace
Peace officers can arrest those committing the breach of the peace or those who on
reasonable grounds heshe believe are about to join in or renew the breach of the peace
Peace officers also have powers at their disposal under ss 63-69 of the Criminal Code to
deal with the offences of unlawful assembly and riots
41 Ibid at 447-448 42 RSC 1985 c C-46
26
2 Trespass to Property Act
The Ontario Trespass to Property Act43 is a potential source of police power to arrest
without warrant those who are unlawfully on certain premises or who were recently
unlawfully on the premises and refuse to give their name and address44 This statute
deals with illegal entry into both private and public property by creating the offence of
trespass for those who without the express permission of the occupier enter on to
premises or engage in an activity on the premises when it is prohibited by the statute45
Though this statute is primarily used by private property owners to keep unwanted people
off of their property it has also been invoked by the Speaker of the House46 and by the
City of Toronto47 It must be noted however that using the Trespass to Property Act in
relation to removing individuals from ldquopublicrdquo places may raise Charter issues48
3 Foreign Missions and International Organizations Act
The RCMP as peace officers have the general duty to preserve the peace and prevent
crime and offences as set out in s 18 of the Royal Canadian Mounted Police Act49
Additional duties found in s 17 of the Royal Canadian Mounted Police Regulations
198850 include the protection of ldquointernationally protected personsrdquo as defined in s 2 of
the Criminal Code Internationally protected persons include heads of state and their
43 RSO 1990 c T2144 Ibid ss 9(1) 1045 Ibid s 2(1)46R v Behrens [2004] OJ No 5135 (CJ) The Court held that the issue of the trespass notices fell under the Speakerrsquos parliamentary privilege and were not reviewable even on the basis of a Charter argument47R v Semple [2004] OJ No 2137 (CJ)48 In R v Semple the defendants were charged under the Ontario Trespass to Property Act for entering the grounds of Toronto City Hall after being banned from doing so In the end the Court held that the defendantsrsquo peaceful entry onto the grounds was an expression as per s 2(b) of the Charter Torontorsquos notice under the Act infringed on this freedom and in these circumstances it could not be justified under s 1 of the Charter 49 RSC 1985 c R-1050 SOR88-361
27
family members The RCMPrsquos duty to protect internationally protected persons is also
found in s 6(1) of the Security Offences Act51
In addition Canada is a signatory of the United Nations Convention on the Prevention
and Punishment of Crimes against Internationally Protected Persons including
Diplomatic Agents52 This Convention provides that the Government of Canada must
protect visiting heads of state or government foreign ministers representatives or
officials of a state or any official or other agent of an international organization of an
intergovernmental character and the family members that accompany him or her The
RCMP has the responsibility to carry out these security measures
Pursuant to s 101(1) of the FMIOA ldquoThe Royal Canadian Mounted Police has the
primary responsibility to ensure the security for the proper functioning of any
intergovernmental conference in which two or more states participate that is attended by
persons granted privileges and immunities under this Act and to which an order made or
continued under this Act appliesrdquo
The powers to carry out this mandate are found in s 101(2) of the FMIOA ldquothe Royal
Canadian Mounted Police may take appropriate measures including controlling limiting
or prohibiting access to any area to the extent and in a manner that is reasonable in the
circumstancesrdquo It is noteworthy that the FMIOA has legislated the same powers
provided to the police under common law and statute
In order to trigger the RCMP powers described in s 101 the Governor in Council on the
51 RSC 1985 c S-752 UNGA Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons including Diplomatic Agents 20 February 1977 UN Doc I-15410
28
recommendation of the Minister of Foreign Affairs and pursuant to s 5 of the FMIOA
made the G8 Summit Privileges and Immunities Order 201053 on December 10 2009
This order was repealed and a subsequent order54 was made on January 13 2010 A
similar order55 for the G20 Summit was made on March 11 201056
Therefore during the G20 the RCMP had the specific statutory power to limit or
prohibit access to any area and to any extent as long as the measures were appropriate
and done in a manner that was reasonable in the circumstances ldquoThe RCMP may secure
the perimeter of the security zone on land with fencing and restrict access to this zone
through the use of checkpoints and other measuresrdquo57
Though not invoked during the G20 s 101(4) of the FMIOA provides that arrangements
can be entered into with a province concerning the responsibilities of members of the
RCMP and members of the provincial and municipal police forces with respect to
ensuring the security for the proper functioning of an intergovernmental conference No
information was provided to me as to why such an arrangement was not entered into for
the G20
These intergovernmental security provisions of the FMIOA were enacted just prior to the
G8 being held in Kananaskis Alberta in 2002 In light of violent protests at international
events and the 911 terrorist attacks in the United States the Federal Government
53 SOR2009-33654 SOR2010-1355 SOR2010-6256 Supra note 17 ldquoUpon such an Order being made the RCMP in co-operation and collaboration with other police forces becomes impressed with the primary responsibility of ensuring not only the protection of the IPPs but also ensuring lsquosecurity for the proper functioningrsquo of the intergovernmental conference To that end the FMIOA provides that the lsquoappropriate measures including controlling limiting or prohibiting access to any area to the extent and in a manner that is reasonable in the circumstancesrsquo may be takenrdquo57 Ibid
29
considered it timely ldquoto clarify in statute the present common law authority for police to
provide security and protection for high profile international eventsrdquo58 At such events it
was intended that ldquothe RCMP is the lead to make sure that security is providedrdquo59
Given that it was clearly the intention of the Federal Government to have the RCMP as
the lead police force at these international events consideration should be given to
expand the use of the FMIOA to cover all large scale international events such as the
Olympics the Pan American Games and international trade fairs as these events are
routinely attended by heads of state and senior government officials Most recently
Vancouver held the 2010 Olympic and Paralympic Winter Games60 Though federal and
municipal legislation were passed to assist in securing the Games expansion and
application of the FMIOA would have been a better approach The RCMP as the national
police force ought to be in charge pursuant to their authority under the FMIOA
4 Emergency Legislation
Through my consultations with the parties listed in Appendix 2 I heard that while we are
not in a time of war as in 1939 when the PWPA was enacted we live in an age of
international and local terrorism threats Our democratic society must be vigilant in
58 Canada House of Commons Debates 37th Parl 1st Sess No 93 (5 October 2001) at 100059 Canada House of Commons Standing Committee on Public Safety and National Security 40th Parl 3rd
Sess Evidence (25 October 2010)60 In anticipation of this event the Governor General in Council on the recommendation of the Minister of Transport pursuant to the Aeronautics Act (RSC 1985 c A-2) and the Canadian Air Transport Security Authority Act (SC 2002 c 9 s 2) passed the Vancouver 2010 Aviation Security Regulations (SOR2009-298) The purpose of the regulations was to enhance aviation security during the Games The Regulation provided for extra security and extra authorized means to conduct screenings In addition the Vancouver City Council passed the very lengthy By-law No 9962 known as the ldquoVancouver 2010 Olympic and Paralympic Winter Games By-Lawrdquo Specific security measures to be employed at a city live site (described thoroughly in a Schedule to the By-Law) that were enabled by this By-Law included The installation and monitoring of airport style and other security measures including magnetometers and X-ray machines the installation and monitoring of closed circuit television cameras the searching of any person who wished to enter on to a city live site and any bag luggage or other container carried by such person and the prohibiting of access to or removal from a city live site any person who refused to submit to a search
30
maintaining a proper level of security while recognizing that democratic values and
security issues can conflict where public order is at issue It is important to highlight that
provincial legislation exists dealing with both terrorism threats and emergency situations
I have been informed that federal and provincial counter-terrorism plans exist that
address preventing and responding to acts of terrorism
The Police Services Act regulations mandate police forces to establish procedures
consistent with federal and provincial counter-terrorism plans61 and to have policies with
respect to counter-terrorism62 In addition the Emergency Management and Civil
Protection Act allows for orders to be made in situations specifically designated an
ldquoemergencyrdquo63 by the Lieutenant Governor in Council or the Premier that regulate or
prohibit travel and movement to from or within any specified area64 Therefore the
PWPA is not needed to deal with these emergency situations as specific more recent
emergency legislation is in place for that very purpose
C Gaps in Canadian Police Powers
The Ministry of Community Safety and Correctional Services provided me with an
interesting article published in 2010 entitled ldquoThe Gap in Canadian Police Powers
61 Adequacy and Effectiveness of Police Services O Reg 399 s 2862 Ibid s 2963 Section 1 of the Emergency Management and Civil Protection Act defines an ldquoemergencyrdquo as ldquoemergencyrdquo means a situation or an impending situation that constitutes a danger of major proportions that could result in serious harm to persons or substantial damage to property and that is caused by the forces of nature a disease or other health risk an accident or an act whether intentional or otherwise (ldquosituation drsquourgencerdquo)64 RSO 1990 c E9 s 702(4)
31
Canada needs lsquoPublic Order Policingrsquo Legislationrdquo and co-authored by Wesley Pue and
Robert Diab65
This article was prompted by the debate over the cost nature and extent of security to be
employed at the Vancouver 2010 Winter Olympics The authors criticized the fact that
policing authorities in Canada ldquolack specific statutory authorization to take measures
commonly thought necessary to their missionrdquo66 These measures included security
fences in public areas designated protest areas restricted access to public space police
surveillance and searches without cause
The authors recognize that such powers may be necessary but note that ldquono legislature
has ever expressly conferred such powers on policing authorities outside the context of
international intergovernmental conferences Nor does the common law accord such
powers to state officials on its ownrdquo67 I respectfully disagree with this latter statement
It is my view the police have powers pursuant to the common law and statute as I have
discussed in the preceding section
The authors referred to R v Knowlton68 which I have previously discussed While the
authors give Knowlton a very narrow interpretation stating that ldquoits binding principle is a
good deal narrower than the words taken out of context might suggestrdquo69 I however am
of the view that the decision supports the proposition that police have a broad range of
65 Wesley Pue and Robert Diab ldquoThe Gap In Canadian Police Powers Canada Needs lsquoPublic Order Policingrsquo Legislationrdquo (2010) 28 Windsor Rev Legal Soc Issues 87 Wesley Pue is a professor of legal history at the University of British Columbia and Robert Diab is a PhD candidate at the UBC Faculty of Law66 Ibid p 8867 Ibid68 Supra note 3469 Supra note 65 p 92
32
responsibilities with deep historical roots in the common law and codified in statute a
position shared by the Federal Government when it introduced amendments to the
FMIOA The actions of the police in Knowlton were necessarily incidental to their
common law police duties and powers
The authors conclude that this ldquoauthority of police to create zones of exclusion either as
an incident of the general and ancient duties of constableshelliphas never been established in
the courtsrdquo70 I am of the view however that the role of the police in establishing
security zones relating to a crime a serious accident or other emergency is a routine and
well-accepted use of police powers pursuant to their common law and statutory duties I
am not suggesting that this common law authority permits the police to establish security
zones ldquofor the proper functioning of any intergovernmental conference in which two or
more states participaterdquo71 larger than necessary to fulfill their purpose The FMIOA as
amended in 2002 provides the RCMP with ldquoprimary responsibility to ensure the security
for the proper functioning of the intergovernmental conferencerdquo72 It is interesting
however that when the Federal Government was enacting this specific authority the
legislative debates indicated that the government was merely clarifying ldquoin statute the
present common law authority for police to provide security and protection for high
profile international eventsrdquo73
Security perimeters are routinely erected by police in the context of the commission of a
crime motor vehicle and other accidents as well as the Santa Claus parade and other
70 Ibid p 9671 Supra note 8 s 101(1)72 Ibid73 Supra note 58
33
parades It would in my view be quite impractical and unnecessary to legislate an
extensive code of police powers given their common law and statutory responsibilities to
generally maintain public order It is not advisable in my opinion to be prescriptive in
any way regarding what actions the police can take since they must assess what the
situation warrants while at the same time considering individual rights and freedoms
The details of any police response to an emergency must be tailored to the exigencies
related to the situation
The police clearly have common law and statutory authority to conduct warrantless
searches in specific situations (ldquoin exigent circumstancesrdquo)74 However when
warrantless searches must be carried out on a regular routine basis the police are acting
more like full time security guards and there should be specific statutory authority
provided to give such powers
I certainly accept the general proposition the authors assert that the mobility rights of
citizens should not be unreasonably or unfairly dealt with However one only need be
aware of the massive amount of construction taking place on the streets of Toronto as this
Report is being written to appreciate that it is not always reasonable to expect that ldquothe
rights of businesses homeowners and ordinary citizens to go about their routine
activities without interruptionrdquo75 will go unhindered While generally desirable it cannot
be legally guaranteed At the same time the authors do concede that ldquoimportant as they
74 Supra note 42 s 4871175 Supra note 65 p 89
34
are the rights of assembly movement and protest are not unqualified They can ndash and
should ndash be balanced against other important public needsrdquo76
In my view public policing at times requires innovation as it often benefits from
creative problem solving If police abuse their common law powers related to ldquopublic
order policingrdquo they are accountable to a multiplicity of authorities and the rule of law
most particularly the Charter The legal rights outlined in the Charter such as ldquothe
principles of fundamental justicerdquo77 security ldquoagainst unreasonable search and seizurerdquo78
and ldquothe right not to be arbitrarily detained or imprisonedrdquo79 are described very
generally However they were chosen deliberately as it was recognized that in each case
there is an inherent tension between imposing security measures and fundamental rights
and freedoms Determining which is paramount will be based on the facts of each case
76 Ibid p 9177 Canadian Charter of Rights and Freedoms s 7 Part I of the Constitution Act 1982 being Schedule B to the Canada Act 1982 (UK) 1982 c 1178 Ibid s 879 Ibid s 9
35
SECTION 5 LEGAL ANALYSIS OF THE PUBLIC WORKS PROTECTION ACT
A Legal Analysis of the Legislation
Many stakeholders have questioned the constitutional validity of the PWPA and O Reg
23310 The Ontario Ombudsman seriously questioned whether O Reg 23310 could
pass ldquoconstitutional musterrdquo80 The CCLA suggested that the broad police powers
granted under the PWPA were inconsistent with the Charter81
To the same effect were comments made by Premier Dalton McGuinty who described
the PWPA as ldquoan archaic law that was used to undermine Torontoniansrsquo civil rights
during the G20rdquo82 He elaborated83
The issue is whether itrsquos appropriate given our present-day values and given an old law which I am confident doesnrsquot strike the balance that you and I would want today in terms of public safety and individual freedom of expressionhellipWhen you start talking about civil rights individual freedoms yoursquore talking about those things that in fact define us as a free and democratic societyhellipItrsquos something that is real and meaningful and important to all of us
The Terms of Reference for this Review do not require that I conduct a constitutional
analysis of the PWPA I have however been asked to consider areas for reform and if
appropriate make specific recommendations for amendment or repeal This does require
that I therefore consider whether the legislation may be vulnerable to constitutional
challenge
Section 2(b) of the Charter guarantees everyone the fundamental freedom of expression
The definition of ldquoexpressionrdquo has been interpreted broadly ldquoActivity is expressive if it
80 Supra note 32 at para 23381 Supra note 26 p 982 Robert Benzie and Rob Ferguson ldquoMcGuinty shifts focus to fixing G20 lawrdquo Toronto Star (10 December 2010) online thestarcom lthttpwwwthestarcomnewscanadaarticle905436--mcguinty-shifts-focus-to-fixing-g20-lawgt 83 Ibid
36
attempts to convey meaningrdquo84 While freedom of expression is not absolute there is
very little that is not considered expression However expression that advocates violence
is not protected under s 2(b)85
The Supreme Court of Canada in Committee for the Commonwealth of Canada v
Canada held that s 2(b) ldquodoes not encompass the right to use any and all government
property for purposes of disseminating onersquos views on public matters but I have no doubt
that it does include the right to use for that purpose streets and parks which are dedicated
to the use of the public subject no doubt to reasonable regulation to ensure their
continued use for the purposes to which they are dedicatedrdquo86 It seems clear that
protesting in public streets is a form of expression protected by s 2(b) Protesting at an
intergovernmental conference is clearly expressive in nature
In challenges alleging that a statute contravenes s 2(b) of the Charter a court would
examine whether the purpose or effect of a law contravenes section 2(b)87 There is no
reason to suggest that the purpose of the PWPA was to infringe the freedom of
expression The purpose of the PWPA is to protect important public infrastructures A
court would then have to consider whether the effect of the PWPA may have resulted in
an infringement of freedom of expression
O Reg 23310 defined significant portions of downtown Toronto as a ldquopublic workrdquo
Section 3(c) of the PWPA allows peace officers to refuse entry into public works which
therefore limits the areas in which protesters could express themselves By creating the
84 Irwin Toy Ltd v Queacutebec (Attorney General) [1989] 1 SCR 927 at 96885 Ibid at 97086 [1991] 1 SCR 139 at 165-16687 Peter Hogg Constitutional Law of Canada loose-leaf (consulted on 7 January 2011) 5th ed (Toronto Thomson Reuters Canada Limited 2007) at 43-6
37
relatively large security perimeter designated by the regulation individuals may allege
they were not permitted to communicate directly with those they were protesting against
Furthermore individuals could not communicate in public places such as public streets
where the right to freedom of expression has previously been found to exist88
Commissioner Ted Hughes completed an interim report following a public hearing into
the complaints regarding events that took place with respect to the Asia Pacific Economic
Cooperation (APEC) Conference in Vancouver British Columbia in November 1997
Commissioner Hughes recommended that generous opportunity should be afforded to
peaceful protesters to be seen in their protest activities by guests at the event89
Section 7 of the Charter provides that ldquoEveryone has the right to life liberty and security
of the person and the right not to be deprived thereof except in accordance with the
principles of fundamental justicerdquo The PWPA raises issues regarding the liberty and
security of the person in providing for warrantless searches and stopping for
identification Furthermore vague laws offend two fundamental values of our legal
system90 Firstly individuals are not provided with sufficient guidance as to what
behaviour a law prohibits Secondly those in charge of enforcing the law are not
provided with clear guidance as to how to enforce it A vague law can lead to inconsistent
and arbitrary enforcement91
88 Supra note 86 89 Canada Commission for Public Complaints Against the RCMP APEC ndash Commission Interim Report (31 July 2001) at s 3111 (Commissioner Ted Hughes QC) online Commission for Public Complaints Against the RCMP lthttpwwwcpc-cppgccaprrrepphrapecapec-31-engaspxgt90 Supra note 87 at 47-60 91 ldquoA vague provision does not provide an adequate basis for legal debate that is for reaching a conclusion as to its meaning by reasoned analysis applying legal criteria It does not sufficiently delineate any area of risk and thus can provide neither fair notice to the citizen nor a limitation of enforcement discretion Such
38
As described by Professor Hogg92
The requirement that any limit on rights be prescribed by law reflects two values that are basic to constitutionalism or the rule of law First in order to preclude arbitrary and discriminatory action by government officials all official action in derogation of rights must be authorized by law Secondly citizens must have reasonable opportunity to know what is prohibited so that they can act accordingly Both these values are satisfied by a law that fulfils two requirements (1) the law must be adequately accessible to the public and (2) the law must be formulated with sufficient precision to enable people to regulate their conduct by it and to provide guidance to those who apply the law
As I stated earlier the phrase ldquoany approach theretordquo contained in s 3(a) of the PWPA is
potentially vague No criteria are provided to assist in determining when one is on ldquoany
approach theretordquo A phrase such as ldquoany approach theretordquo is subject to many potential
interpretations It is arguable that this language does not provide reasonable guidance for
individuals to obey the law and for the law to be consistently enforced
Section 8 of the Charter provides that ldquoEveryone has the right to be secure against
unreasonable search or seizurerdquo A warrantless search or seizure is only reasonable if the
search was authorized by law the law itself is reasonable and the manner in which the
search carried out was reasonable93 The fact that no reasonable or probable suspicions
are needed to carry out a search pursuant to s 3(b) of the PWPA raises some issues The
only prerequisite to such a search is that the person or vehicle being subjected to a search
is entering or attempting to enter a public work
a provision is not intelligible to use the terminology of previous decisions of this Court and therefore it fails to give sufficient indications that could fuel a legal debaterdquo (R v Nova Scotia Pharmaceutical Society [1992] 2 SCR 606 at 639-640) 92 Supra note 87 at 38-1293 R v Nolet [2010] SCJ No 24 at para 21
39
Whether the PWPArsquos s 3(b) authority to undertake warrantless searches is ldquoreasonablerdquo
depends on the reasonableness of the impact on the subject of the search ldquoThe
individuals reasonable expectation of privacy must of course be balanced against the
public interest in effective law enforcementrdquo94 It is harder to justify a warrantless search
where the reasonable expectation of privacy is higher For example interference with
bodily integrity will raise the standard of reasonableness Conversely in situations where
people expect to have a lower level of privacy the standard to prove reasonableness is
lower
One rightfully has some expectation of privacy when in public but it does not rise to the
level of privacy that one expects in onersquos home The expectation of privacy further
decreases when one attempts to enter a ldquopublic workrdquo especially in the context of a
secured barrier to an intergovernmental conference
Section 9 of the Charter provides that ldquoEveryone has the right not to be arbitrarily
detained or imprisonedrdquo95 Under s 3(a) of the PWPA a person entering or attempting to
enter or approach a public work must provide his or her name and address and state the
purpose for which he or she desires to enter the public work In order for a guard or
peace officer to carry out this duty the guard or peace officer may ldquostoprdquo the person from
further approaching or entering the public work and the person is not permitted under the
statute to decide not to enter By so doing it is arguable the guard or peace officer has
assumed control over the movement of the individual by a demand or direction The
94 R v Rao [1984] OJ No 3180 at para 79 (CA)95 ldquoDetention under s 9hellipof the Charter refers to a suspension of the individualrsquos liberty interest by a significant physical or psychological restraint Psychological detention is established either where the individual has a legal obligation to comply with the restrictive request or demand or a reasonable person would conclude by reason of the state conduct that he or she had no choice but to complyrdquo (R v Grant [2009] SCJ No 32 at para 44)
40
PWPA provides for a significant legal consequence if the demand or direction is not
followed since ldquoEvery person who neglects or refuses to comply with a request or
direction made under this Act by a guard or peace officer and every person found upon a
public work or any approach thereto without lawful authority the proof whereof lies on
him or her is guilty of an offence and on conviction is liable to a fine of not more than
$500 or to imprisonment for a term of not more than two months or to bothrdquo96
Pursuant to s 3(b) of the PWPA a guard or peace officer may search any person entering
or attempting to enter a public work These searches would necessitate the detention of a
person If a guard or peace officer performs such a search he or she has taken control
over the movement of the person by a demand or direction The same serious legal
consequence results from failing to obey this demand or direction as that which results
from failing to obey the demand or direction pursuant to s 3(a) of the PWPA As a
result ldquodetentionsrdquo could occur pursuant to both s 3(a) and s 3(b) of the PWPA
The question that would need to be addressed in any challenge to the PWPA is whether
the detentions permitted by the PWPA are arbitrary in nature The use of the term ldquoany
approach theretordquo is vague and imprecise A person could be deemed to be on ldquoany
approach theretordquo a great distance from the entrance of a public work and their detention
might very well be arbitrary In addition the fact that the guards and peace officers
determine the boundaries of the ldquoapproachesrdquo which cannot be contested seems
arbitrary as well as who they chose to search
96 It should be noted that not all communications with state authorities and police officers will amount to a detention The question is whether a person may reasonably believe that he or she is free to refuse to comply
41
Section 11(d) of the Charter provides that ldquoAny person charged with an offence has the
right to be presumed innocent until proven guilty according to law in a fair and public
hearing by an independent and impartial tribunalrdquo This requires that the Crown have the
burden of proving the guilt of an individual charged with an offence97 Provisions that
place the burden on the accused to disprove on the balance of probabilities an essential
element of an offence raises s 11(d) concerns because convictions would be possible
even if reasonable doubt existed98 The presumption of innocence is not only infringed
upon by a requirement that an accused disprove an essential element of an offence but
also any requirement on an accused to prove a fact on the balance of probabilities to
avoid conviction
Section 5(1) of the PWPA states that ldquoEvery person who neglects or refuses to comply
with a request or direction made under this Act by a guard or peace officer and every
person found upon a public work or any approach thereto without lawful authority the
proof whereof lies on him or her is guilty of an offence and on conviction is liable to a
fine of not more than $500 or to imprisonment for a term of not more than two months or
to bothrdquo For the offence of being found upon a public work or on any approach to a
public work without lawful authority the burden of proof has been ldquoshiftedrdquo from the
Crown to the accused to prove lawful authority
As the foregoing analysis reveals there are certainly many concerns that arise when one
places the PWPA under the lens of the Charter However the rights and freedoms
provided by the Charter are not absolute They are ldquosubject only to such reasonable
97 R v Oakes [1986] 1 SCR 10398 Ibid at 132
42
limits prescribed by law as can be demonstrably justified in a free and democratic
societyrdquo99
In assessing whether a law which infringes the Charter is saved by s 1 a court examines
both the object of the law and the measures taken to achieve that objective A lawrsquos
objective achieves the status of being sufficiently important to justify overriding a
Charter right only when it is consistent with the values of a free and democratic society
The objective must relate to pressing and substantial concerns and not concerns that are
trivial and must be focussed on ldquothe realization of collective goals of fundamental
importancerdquo100 The measures adopted must be ldquorationally connectedrdquo to the objective of
the law101 The measures ldquoshould impair lsquoas little as possiblersquo the right or freedom in
questionrdquo102 Furthermore there must be ldquoa proportionality between the effects of the
measures which are responsible for limiting the Charter right or freedom and the
objective which has been identified as of lsquosufficient importancersquordquo103
An issue that may affect whether the potential limitation on rights and freedoms of the
PWPA and O Reg 23310 were ldquoprescribed by lawrdquo is whether the regulation was
adequately accessible to the public The Ontario Ombudsman the CCLA and the Ontario
Bar Association (ldquoOBArdquo) all noted a lack of notice regarding O Reg 23310 and its
effects prior to and during the G20 While the text of the regulation was available prior
99 Charter s 1 The Superior Court of Quebec decision of Tremblay v Queacutebec (Attorney General) [2001] JQ No 1504 (CS) involved an interim injunction brought by an applicant who was denied entry into the secured perimeter during the 2001 Summit of the Americas in Queacutebec City The applicant sought an injunction to either eliminate the security barrier or to be given a pass to let him within the secured perimeter Even though the Court held that the erection of the security zone violated the applicantrsquos right to freedom of expression and peaceful assembly The court held that the infringement was ldquodemonstrably justified in a free and democratic societyrdquo100 Supra note 97 at 136101 Ibid at 139102 Ibid103 Ibid
43
to the G20 it was only available on a website not frequently accessed by the public
Since O Reg 23310 was not published in The Ontario Gazette until after it was
revoked it may be that the regulation was not adequately accessible to the public
Reverse onus offences have been found to be ldquorationally connectedrdquo when there is plainly
a rational connection between the proven fact and the fact to be presumed Reverse
onuses have also been upheld when the burden placed on the Crown would be virtually
impossible to meet (such as proving sanity)104 Even if the accused only has the burden
of disproving the fact that heshe did not have lawful authority to be in a public work or
on an approach thereto there may not be a rational connection between the proven fact
and the fact to be presumed
The history of threats and violence at previous intergovernmental conferences
demonstrated that the protection of G20 participants was a pressing and substantial
concern However given the broadness of the PWPA every exercise of it raises the
potential for Charter scrutiny
Recommendation
Given the public policy considerations I have raised regarding the PWPA and Charter
concerns that could arise I recommend that the PWPA be repealed after the Province has
considered potential policy and security gaps as a result of its repeal
B Other uses of the Public Works Protection Act
It appears from my consultations with stakeholder groups that if the PWPA is repealed
104 R v Chaulk [1990] 3 SCR 1303 at 1340
44
there are two areas which may require legislation to provide specific peace officer
powers These two areas are court security and the protection of nuclear power facilities
and other power generating infrastructures
1 Court Security
During my decade as Ontariorsquos Attorney General (1975 to 1985) there were three
murders in provincial courthouses as well as many threats to members of courthouse staff
and others As violent acts in courthouses can be anticipated courtroom security is often
required
Individuals are compelled to go to court for a variety of reasons such as appearing as an
accused as a witness or for jury duty To provide protection to those who work there or
are compelled to attend an adequate level of court security may require a search without
warrant of each and every individual who seeks to enter a courthouse It is not reasonable
to require prior judicial authorization for each search that takes place
The courts have considered the constitutionality of these provisions of the PWPA in
conjunction with section 137 of the Ontario Police Services Act in the context of court
security
Section 137 of the Ontario Police Services Act imposes a responsibility on municipal
police services boards to secure the premises where court proceedings are conducted and
includes
1 Ensuring the security of judges and of persons taking part in or attending proceedings
45
2 During the hours when judges and members of the public are normally present ensuring the security of the premises
3 Ensuring the secure custody of persons in custody who are on or about the premises including persons taken into custody at proceedings
4 Determining appropriate levels of security for the purposes of paragraphs 1 2 and 3
In R v Campanella105 Ms Campanella was attending the John Sopinka Courthouse in
Hamilton At the courthouse there were signs posted stating that those who entered
would be searched for weapons When Ms Campanellarsquos bag was searched marijuana
was found and she was charged with the possession of marijuana She argued that her s
8 Charter protection against unreasonable search and seizure had been violated and the
marijuana discovered during the search should therefore be excluded as evidence The
trial judge and the summary convictions appeal court rejected the section 8 Charter
argument and the appellant appealed to the Ontario Court of Appeal
The Ontario Court of Appeal agreed that ldquogiven the importance of the government
objective and the context in which these searches take place it is reasonable to authorize
warrantless searches of those entering courthouse facilitiesrdquo106 The Court stated ldquothe
only effective way to diminish the risk in a large courthouse is to subject everyone
without prior security clearance to some kind of inspection I can see no other feasible
means of achieving the aimrdquo107
The Court also pointed out the concern relating to the erosion of the benefits and
105 [2002] OJ No 5104 (SCJ) affrsquod [2005] OJ No 1345 (CA) [ldquoCampanellardquo]106 R v Campanella [2005] OJ No 1345 at para 17 (CA)107 Ibid at para 19
46
protections conferred by s 8 of the Charter108
I am sensitive to the concern that we should not erode the benefits and protections of s 8 by gradually sanctioning ever-greater intrusions into privacy because of unfounded fears We should not lightly accept that searches in public places are justified solely because people have become used to them and expect them However the record in this case establishes the justification for the kinds of searches carried out in this case
Ultimately the appeal was dismissed and s 137 of the Police Services Act and s 3(b) of
the PWPA) were held to comply with s 8 of the Charter109
In its consultations with me the OBA similarly stated that the existing nature of court
security is necessary and is generally ldquowell toleratedrdquo At the same time however it
submits that the security regime should not be ldquoshoehornedrdquo into the PWPA regime and
that it would be preferable to provide a legislative framework tailored for the specific
security requirements While the PWPA has been relied upon as support for the exercise
of powers by the police in providing court security the OBA submits that the PWPArsquos
ldquosingle security schemerdquo which declares something a ldquopublic workrdquo is an ldquoawkward
blunt instrument in a world where more specialized tools are necessaryrdquo When
warrantless searches are being done on a routine basis it is advisable to have specific
legislation providing peace officers with such power
Recommendation
Court security legislation is currently in place in many jurisdictions across Canada and
contain provisions that permit warrantless searches of persons wanting to access a
108 Ibid at para 25109 The Court in R v SS [2005] OJ No 5002 (SCJ) agreed with the findings and rationale of the Court of Appeal in Campanella
47
courthouse The constitutional validity of such legislation in Manitoba was upheld by that
provincersquos highest court110
Given the ongoing need for warrantless searches at courthouses the Province of Ontario
should consider specific court security legislation in Ontario to support the security
measures in our courthouses if the PWPA is to be repealed taking into consideration the
responsibilities of the municipal police services boards provided in s 137 of the Police
Services Act This legislation should only be passed after proper notice consultation and
legislative debate
2 Power Generating Infrastructures
It is clear from the submissions that I received from representatives of OPG and the
Canadian Nuclear Safety Commission (ldquoCNSCrdquo) that the PWPA currently plays a role in
providing security officers with the powers to secure power generating infrastructures
including the ability to carry firearms and the ability to stop and require identification
from those in proximity to those nuclear plants
Security is of the utmost importance in protecting a nuclear power plant Members of the
public do not need to access a nuclear or similar power facility unless employed at the
facility or carrying out work for the facility111
The security of areas within nuclear power plants is governed by the Nuclear Security
110 R v Lindsay [2004] MJ No 380 (CA) 111 Though the discussion focuses on nuclear power plants I have been informed that other power generating infrastructures use the PWPA to designate their security officers as guards As a result if the PWPA is repealed it will be necessary to broaden the consultations in relation to these other power generating infrastructures
48
Regulations112 Every nuclear power plant must be located within a ldquoprotected areardquo113
This protected area is the area within a fenced perimeter which is alarmed and
continually patrolled This area must be equipped with devices that employ two
independent systems to detect intrusion into the area114 The Nuclear Security
Regulations also provide detailed specifications for the barrier which must enclose the
protected area115 In addition licensees must ldquoidentify all vital areas and implement
physical protection measures ndash including access control and measures designed to delay
unauthorized accessrdquo116
The Nuclear Security Regulations also provide detailed provisions regarding entry into
protected areas No person can ldquoenter a protected area without physical proof of the
recorded authorization of the licenseerdquo117 Further to this on entry into a protected area
ldquothat personrsquos identity shall be verified by two separate personnel identity verification
systems one of which is an access card reader and the other of which is a biometric
personnel identity verification devicerdquo118 Licensees must also ldquoensure that vehicle
portals are used for the entry and exit of land vehicles into and from a protected areardquo119
Physical protection measures are also required to reduce the chance of a forced land
vehicle entry into a protected area120
The power to conduct searches upon entry to a protected area is also provided by the
112 SOR2000-209 113 Ibid s 8114 Ibid s 11(a)(i)115 Ibid s 9116 Ibid s 141117 Ibid s 17(1)118 Ibid s 171119 Ibid s 91(1)120 Ibid s 91(4)
49
Nuclear Security Regulations Signs must be posted that are visible to people about to
enter the protected area stating that they must allow a nuclear security officer (ldquoNSOrdquo) to
ldquosearch them and everything in their possession including any land vehicle for weapons
and explosive substancesrdquo121 In addition when leaving the protected area people must
allow NSOs to ldquosearch them and everything in their possession including any land
vehicle for Category I II or III nuclear materialrdquo122 People are not permitted to enter or
leave a protected area unless these searches are carried out123 The Nuclear Security
Regulations provide for the method of search including ldquoa hand-held scanner a walk-
through scanner or any similar devicerdquo124 In addition if an NSO determines it
necessary a frisk search can be carried out by a person of the same sex125
I have been informed that the area outside of but adjacent to the ldquoprotected areardquo is
referred to as the ldquocontrolled areardquo This area includes roadways and waterways within
the nuclear facilityrsquos property boundaries adjacent to or in close proximity to the nuclear
power plantrsquos protected area and may be generally accessible to the public
As a result of the September 11 2001 terrorist attacks the Nuclear Security Regulations
were amended to require that high security nuclear facilities maintain an on-site armed
Nuclear Response Force (ldquoNRFrdquo)126 The NRF is composed of specialized NSOs
Section 32 of the Nuclear Security Regulations requires the NRF to be capable of making
an effective intervention taking into account the threat
121 Ibid s 27(1)(a)122 Ibid s 27(1)(b)123 Ibid s 27(2)124 Ibid s 27(5)(a)125 Ibid s 27(5)(b)126 Ibid s 32
50
Members of the NRF are mandated by the Nuclear Security Regulations to be ldquotrained in
the use of firearms authorized to carry firearms in Canada and qualified to use themrdquo127
However to satisfy this requirement the NRF resorts to the PWPA since the federal
regulations do not authorize the NRF to carry firearms without a licence However
under s 2(1) of the PWPA NSOs are designated as ldquoguardsrdquo with the powers of a peace
officer most significantly to carry and use firearms without having to be licensed128
Such a designation also enables the OPG to acquire and dispose of firearms
In the consultations I had with the OPG and the CNSC they advised me that NSOs
receive training equivalent to Canadian police standards and that NRF officers receive
training equivalent to federal and provincial police tactical team requirements
Another aspect of the PWPA used to secure nuclear power plants relates to powers
exercised by NSOs in ldquocontrolled areasrdquo The federal regulations do not provide the
NSOs with any power to demand identification within this area However pursuant to
the PWPA as appointed ldquoguardsrdquo the NSOs have the power to demand identity
verification in the controlled area They also have the authority to arrest anyone who
obstructs NSOs in the performance of their duties under the PWPA
In addition to using the PWPA to secure the controlled areas I have been advised by the
OPG that NSOs use powers pursuant to the PWPA to secure areas within 100 metres of a
nuclear facilityrsquos property line immediately adjacent to the controlled area These powers
are exercised under the broad language of the PWPA regarding ldquoapproaches to public
127 Ibid s 1 (on-site nuclear response force definition)128 Section 11707 of the Criminal Code exempts peace officers from licensing requirements for possessing firearms and other prohibited and restricted weapons
51
worksrdquo This is an illustration of the problem with the vagueness of this language in the
legislation As these powers are exercised on public land they could be challenged as a
potential infringement on individual rights and freedoms However I have been advised
that there have been no such incidents to date The need to ensure the security of these
facilities must be taken into the balance
NSOs must be able to monitor and control access to the controlled areas and areas close
to a nuclear power plantrsquos property line This provides for a more secure perimeter
around these facilities They need authority to challenge individuals acting in a suspicious
manner or conducting surveillance of nuclear facilities The OPG has informed me that
areas outside a nuclear facilityrsquos property line immediately adjacent to the controlled
area are still close enough to take advantage of the short distance to conduct intelligence
using high-powered surveillance equipment These nuclear power plants are not located
on isolated islands and are therefore vulnerable Both the Pickering Nuclear Generating
Station and the Darlington Nuclear Generating Station operate within major urban areas
being 30 km and 60 km east of downtown Toronto respectively I am advised that
previous events such as ldquoThe Toronto 18rdquo129 have shown that those intent on targeting
vital infrastructure such as power generating facilities often use reconnaissance and
intelligence gathering as precursor tactics
Recommendation
If the PWPA is to be repealed it is imperative that those who secure our nuclear and
power generating facilities be given the requisite specific legislative powers to do so
129 See for example ldquoLast 2 Toronto 18 accused found guiltyrdquo CBC News (23 June 2010) online cbcca lthttpwwwcbccanewscanadatorontostory20100623toronto-18-verdicthtmlgt
52
The source for these powers should be set out in the federal Nuclear Security
Regulations However if this is not a desired option the Government of Ontario must
consider specific legislation setting out the specific powers required to properly secure
these facilities and the specific location in which these powers can be exercised Such
legislation should not be passed without proper notice consultation and legislative
debate
53
SECTION 6 CONCLUSION
The PWPA was enacted in 1939 to support the war effort At the time the protection of
Ontariorsquos hydroelectric facilities from sabotage was of particular concern Since then the
PWPA has been used to provide the legal foundation for the powers exercised by the
police in providing court security and even more recently by the OPG in securing
nuclear power facilities In June 2010 the PWPA was used to provide powers to secure
intergovernmental conferences The vagueness of the PWPA permits it to be used in
situations when it is arguably not necessary and potentially abusive In my view the
PWPA has been used for purposes beyond its original intent
The time for the PWPA seems to have passed If the Government of Ontario enacts as I
have suggested specific legislation to provide for courthouse security and power
generating infrastructure security it would appear that there is no longer a need for the
PWPA I am also mindful of the existence of counter-terrorism and emergencies
legislation to deal with these situations as they arise
ldquoIn determining the boundaries of police powers caution is required to ensure the proper
balance between preventing excessive intrusions on an individualrsquos liberty and privacy
and enabling the police to do what is reasonably necessary to perform their duties in
protecting the publicrdquo130 The overly broad and vague language of the PWPA does not
strike this required balance with individual rights and freedoms
The late Justice Jackson of the United States Supreme Court stated that every
emergency power once conferred ldquolies about like a loaded weapon ready for the hand of
130 R v Clayton [2007] 2 SCR 725 at 742
54
any authority that can bring forward a plausible claim of an urgent needrdquo131 The need to
protect the public must be balanced with the requirement to preserve fundamental rights
and freedoms
Yet at the same time ldquoCanadians are entitled to demand the best public order policing
possible from their governmentrdquo132 There is no question that we live in a different world
post 911 We live in difficult times with constant threats both domestically and from
abroad The police clearly need to be given adequate powers to carry out their duties
The police use their expertise on a daily basis to assess the powers they require In
instances when they take action that exceeds their powers their actions are examined by
various mandated bodies This process I believe results in the proper balance between
police powers and individual rights and freedoms Therefore any legislation that purports
to grant special police powers must be specific and direct and developed in consultation
with stakeholders and tested through thorough debate in our transparent democratic
system
131 Korematsu v United States 323 US 214 (1944)132 Supra note 26 p 8
55
An Integrated Security Unit (ldquoISUrdquo) was established in 2008 to deal with the security
issues relevant to the G8 and later the G20 Memorandums of understanding entered into
between the Royal Canadian Mounted Police (ldquoRCMPrdquo) and its ISU partners for both
Summits detailed that the RCMP was to be responsible for protecting Internationally
Protected Persons (ldquoIPPsrdquo) as well as the defined ldquocontrolled access zonesrdquo and the other
partners were to be responsible depending on whether it was the G8 or G20 for the areas
immediately adjacent to the controlled access zones referred to as the ldquointerdiction
zonesrdquo For the G8 Summit the Ontario Provincial Police (ldquoOPPrdquo) was to be responsible
for the interdiction zone For the G20 Summit the Toronto Police Service (ldquoTPSrdquo) was
responsible for the interdiction zone
It was TPSrsquos concern regarding its legal authority to establish and secure the interdiction
zone for the G20 Summit which resulted in the use of the PWPA
The TPS requested that the Ontario Government enact a regulation pursuant to the
PWPA4 which would designate the interdiction zone as a ldquopublic workrdquo and thereby give
the TPS the powers granted by the PWPA The regulation enacted pursuant to the PWPA
O Reg 23310 and the exercise by the police of their powers provided by this legislation
triggered this Review
4 Attached as Appendix 3 is a copy of the May 12 2010 letter
2
SECTION 2 THE PUBLIC WORKS PROTECTION ACT
A History of the Public Works Protection Act
The PWPA was enacted in 1939 It in addition to other legislation was passed during an
emergency session of the Ontario Legislative Assembly in response to Canadarsquos entry
into World War II and was considered important in supporting the war effort Lieutenant
Governor Albert Matthews in his throne speech outlined the context in which the
legislation was being passed5
We meet today under circumstances of the utmost gravity The possibility of war in which we are now engaged was fully realized and debated by you at the last session when you passed unanimously a resolution calling in such event for the complete mobilization of all our resources
Legislation calculated to give effect to the determination then expressed will be immediately submitted to you You will be asked to pass measures designed to increase agricultural and industrial production and for the protection of our vital public works and services (emphasis added)
Reports of the legislative debates held in 19396 indicate that protecting the provincersquos
hydroelectric facilities from sabotage was of particular concern The Ontario Government
had asked the Federal Government to provide members of the Canadian military to guard
these works The Federal Government refused and the PWPA was the provincial
response Concerns about restriction on civil liberties were raised in relation to another
bill that would have required permits for the holding of public meetings in public places
however no such concerns were raised in relation to the PWPA The only constitutional
issue raised in debate regarding the PWPA related to whether the Federal Government
was responsible for providing the necessary guards to protect public works as opposed to
requiring provinces to establish ldquoprivate armiesrdquo
5 Ontario Speech of the Throne 20th Parl 4th Sess (19 September 1939)6 Attached as Appendix 4 is a copy of the reports of the legislative debates Note This is the best available copy
3
The PWPA has undergone only minor amendments since 1939 Shortly after it was
enacted two Orders in Council were passed designating areas around the Canadian
General Electric Company Limited and The Canadian Car and Foundry Company as
ldquopublic worksrdquo In 1950 a provision regarding the recovery of certain fines was deleted
In 1960 the provision regarding the appointment of guards was moved from near the end
of the PWPA to closer to the beginning In 1972 the PWPA was amended to reassign
certain responsibilities from the Attorney General to the Solicitor General It was
amended again in 1989 to increase the fine for an offence under the PWPA from $100 to
$500 There have also been some other minor changes of wording since 1939
B Current Uses of the Public Works Protection Act
Although there is legislation in other provinces that defines ldquopublic worksrdquo for other
purposes there is no jurisdiction in Canada which has legislation similar in nature to the
PWPA
As the PWPA was enacted in 1939 as an emergency wartime statute it is perhaps not
surprising that it is relied upon today in only limited circumstances Prior to the G20 the
PWPA had only been relied upon to conduct searches at courthouses in the context of
providing courthouse security This use of the PWPA was upheld by the courts7 In
addition since September 2001 the PWPA has been used by Ontario Power Generation
(ldquoOPGrdquo) to empower its guards to secure its nuclear and non-nuclear power generating
facilities
7 See for example R v Campanella [2002] OJ No 5104 (SCJ) affrsquod [2005] OJ No 1345 (CA) and R v SS [2005] OJ No 5002 (SCJ)
4
C Outline of the Public Works Protection Act
Given the fact that the PWPA is a short statute I am reproducing it here in its entirety for
ease of reference
The Public Works Protection Act
Definitions 1 In this Act
ldquoguardrdquo means a guard appointed under this Act (ldquogardienrdquo)
ldquohighwayrdquo means a common or public highway or a part thereof and includes any street bridge and any other structure incidental thereto and any part thereof (ldquovoie publiquerdquo)
ldquopublic workrdquo includes
(a) any railway canal highway bridge power works including all property used for the generation transformation transmission distribution or supply of hydraulic or electrical power gas works water works public utility or other work owned operated or carried on by the Government of Ontario or by any board or commission thereof or by any municipal corporation public utility commission or by private enterprises
(b) any provincial and any municipal public building and (c) any other building place or work designated a public work by the Lieutenant
Governor in Council (ldquoouvrage publicrdquo) RSO 1990 c P55 s 1
Guards appointment 2(1)For the purpose of protecting a public work guards may be appointed by (a) the Solicitor General
(b) the Commissioner of the Ontario Provincial Police Force (c) any inspector of the Ontario Provincial Police Force
(d) the head or deputy head of the municipal council or the chief of police of the municipality in which the public work is located or the person acting in the place or stead of the head or deputy head
(e) the chair or other person who is the head of a board commission or other body owning or having charge of the public work or the person acting in the place or stead of the chair or other person
Powers of guard (2)Every person appointed as a guard under this section has for the purposes of this
Act the powers of a peace officer
5
Duties of guard (3)Subject to the regulations and to any special direction of the Solicitor General or
the Commissioner of the Ontario Provincial Police Force every guard shall obey all directions of the person appointing him or her any inspector of the Ontario Provincial Police Force the chief of police of the municipality in which is located the public work that he or she is protecting and the person who is in charge of the protecting of the public work
Breach of duty of guard (4)Every guard who (a) neglects or refuses to obey a direction that he or she is required to obey under
subsection (3) (b) fails in any manner to carry out his or her duties as guard
(c) leaves the location to which he or she is assigned as guard or ceases to act as guard without leave of any of the persons mentioned in subsection (3) or
(d) otherwise conducts himself or herself in a manner not consistent with his or her duties as guard
is guilty of an offence and on conviction is liable to a fine of not more than $500 or to imprisonment for a term of not more than two months or to both RSO 1990 c P55 s 2
Powers of guard or peace officer 3A guard or peace officer (a) may require any person entering or attempting to enter any public work or any
approach thereto to furnish his or her name and address to identify himself or herself and to state the purpose for which he or she desires to enter the public work in writing or otherwise
(b) may search without warrant any person entering or attempting to enter a public work or a vehicle in the charge or under the control of any such person or which has recently been or is suspected of having been in the charge or under the control of any such person or in which any such person is a passenger and
(c) may refuse permission to any person to enter a public work and use such force as is necessary to prevent any such person from so entering RSO 1990 c P55 s 3
Statement under oath to be conclusive evidence 4For the purposes of this Act the statement under oath of an officer or employee
of the government board commission municipal or other corporation or other person owning operating or having control of a public work as to the boundaries of the public work is conclusive evidence thereof RSO 1990 c P55 s 4
Refusal to obey guard etc 5(1)Every person who neglects or refuses to comply with a request or direction
made under this Act by a guard or peace officer and every person found upon a public
6
work or any approach thereto without lawful authority the proof whereof lies on him or her is guilty of an offence and on conviction is liable to a fine of not more than $500 or to imprisonment for a term of not more than two months or to both
Arrest (2)A guard or peace officer may arrest without warrant any person who neglects
or refuses to comply with a request or direction of a guard or peace officer or who is found upon or attempting to enter a public work without lawful authority RSO 1990 c P55 s 5
Regulations 6The Lieutenant Governor in Council may make regulations
(a) providing for the organization co-ordination supervision discipline and control of guards
(b) defining the areas that constitute approaches to public works either generally or with regard to a particular public work
(c) respecting any matter necessary or advisable to carry out effectively the intent and purpose of this Act RSO 1990 c P55 s 6
1 Discussion of Key Sections
(a) Definition of ldquoPublic Workrdquo
Section 1 defines ldquopublic workrdquo very broadly There are at least three classes of public
works The first class includes certain transportation infrastructure (ldquorailway canal
highway bridgerdquo) energy infrastructure (ldquopower works including all property used for
the generation transformation transmission distribution or supply of hydraulic or
electrical power gas worksrdquo) other public utilities (ldquowater works public utilityrdquo) and
other ldquoworksrdquo generally (ldquoor other workrdquo) This first class of public works may be
publicly or privately owned (ldquoowned operated or carried on by the Government of
Ontario or by any board or commission thereof or by any municipal corporation public
utility commission or by private enterprisesrdquo)
The second class of defined ldquopublic worksrdquo includes all provincial and municipal
buildings ldquoPublic buildingrdquo is not defined It would appear to clearly include buildings
7
such as the Legislative Assembly courthouses and city halls and likely includes
provincially or municipally owned buildings used for governmental purposes It would
also seem to include provincially or municipally owned buildings used for other
purposes such as libraries for example
The third class of ldquopublic worksrdquo includes any other building place or work designated
as a public work by the Lieutenant Governor in Council The word ldquoplacerdquo would appear
to be a very broad term that could include a public park for example The area
designated by O Reg 23310 fell into this class of ldquopublic workrdquo
(b) Appointment and Powers of Guards and Peace Officers
Section 2 of the PWPA provides for the appointment of ldquoguardsrdquo the powers and duties
of peace officers and guards and the penalties for any breach of duty by these peace
officers and guards The PWPA provides that anyone who is a head of a board
commission or other body having charge over a public work can appoint a guard This is
very broad and arguably allows for the appointment of a private army by someone
ldquohaving charge ofrdquo a public work whoever that may be Pursuant to s 2(2) the ldquoguardsrdquo
have the same powers as a ldquopeace officerrdquo
Section 3 sets out the powers a guard or peace officer acquire pursuant to the PWPA
including that a guard may require people entering or approaching a public work to
identify themselves and to state the purpose for which they desire to enter the public
work In addition the guard or peace officer may search without warrant any person or
vehicle entering or attempting to enter a public work The guard or peace officer can
8
refuse to permit a person to enter a public work and can use as much force as necessary in
this endeavour
(c) Boundaries of Public Work
Section 4 provides that a statement under oath by an officer or employee of the person or
entity operating or having control of a public work regarding the boundaries of the public
work serves as conclusive evidence with respect to the boundaries
(d) Offence Power of Arrest
Section 5 provides that any person who neglects or refuses to comply with a request or
direction made by a guard or peace officer is guilty of an offence In addition a person
who enters a public work or an approach to a public work without lawful authority is
guilty of an offence A person found guilty of an offence is liable to a fine of not more
than $500 andor imprisonment of not more than two months A guard or peace officer
has the power to arrest without warrant any person who refuses to comply with a request
or direction of a guard or peace officer and who enters or attempts to enter a public work
without lawful authority
(e) Regulations
Section 6(b) provides that the Lieutenant Governor in Council may define the areas that
constitute approaches to public works while s 6(c) permits regulations to be made
regarding any matter necessary to carry out the intent and purpose of the PWPA
D Events Leading to Passage of O Reg 23310
There was no apparent reference to the possible use of the PWPA until fairly late in the
planning process for the security for the G20 Summit The Province of Ontario originally
9
attempted to obtain support for its security measures through reliance on a federal statute
the Foreign Missions and International Organizations Act (ldquoFMIOArdquo) which provides
that the RCMP can take ldquoappropriate measuresrdquo to ensure the proper functioning of an
intergovernmental conference ldquoin a manner that is reasonable in the circumstancesrdquo8
On May 7 2010 John Burke Deputy Minister of Community Safety and Correctional
Services of Ontario wrote to William Baker Deputy Minister of Public Safety Canada9
stating that security would be enhanced by the existence of an agreement pursuant to s
101(4) of the FMIOA which provides that the Federal Minister of Public Safety may
enter into arrangements with the government of a province concerning the responsibilities
of members of the RCMP and provincial municipal police forces with respect to
ensuring security for the proper functioning of a conference
On June 11 2010 the Provincial Deputy Minister received a reply10 from the Federal
Deputy Minister indicating that such an agreement would not be required for the
Summits since ldquothe current suite of powers and authorities that peace officers possess at
common law or by virtue of any other federal or provincial Act or regulation were
sufficient for the G8 and G20 Summitsrdquo
The Federal Deputy Minister was clear that in his view the police had sufficient authority
at common law and in statute to secure these conferences Similarly the OPP were of the
view that it was not necessary for the police forces to have any additional police powers
8 SC 1991 c 41 s 101(2) Attached as Appendix 5 is a copy of selected sections of the FMIOA 9 Attached as Appendix 6 is a copy of the May 7 2010 letter10 Attached as Appendix 7 is a copy of the letter received on June 11 2010
10
other than those already conferred by virtue of common law and statute (excluding the
PWPA) in order to secure the interdiction zones for the Summits
On May 12 2010 Chief William Blair of the TPS wrote to the Honourable Rick
Bartolucci Minister of Community Safety and Correctional Services11 stating that a
ldquocornerstonerdquo of the TPS security plan for the G20 Summit would be the establishment of
a security perimeter in an area around the Metro Toronto Convention Centre The
purpose of this security perimeter as explained in the letter was to ldquoensure the safety and
security of those attending the Summit the Summit site itself and people and property
within the area close to the Summit siterdquo Chief Blair indicated that the TPS would rely
upon the authority granted to it pursuant to the common law and if certain conditions are
met the FMIOA12 to establish and control the security perimeter However he believed
that the provisions of the PWPA ldquowould also offer legal support for the extraordinary
security measuresrdquo he believed would be necessary Chief Blair therefore requested ldquothe
Lieutenant Governor in Council to designate the area of or highways within the intended
security perimeter as a public work for the period from June 21 2010 through the end of
the Summit on June 27 2010rdquo A detailed description of the area requested to be
designated as a public work was provided to Minister Bartolucci as well as an aerial
photograph of the area
I am not aware that any organization publicly questioned the inherent police power to
erect fences defining the interdiction zone The Canadian Civil Liberties Association
11 See Appendix 312 This probably is in reference to s 101(4) of the FMIOA which provides the authority for the Minister of Public Safety and Emergency Preparedness to enter into arrangements with the government of a province concerning the responsibilities of members of the RCMP and members of the provincial and municipal police forces with respect to ensuring the security for the proper functioning of an intergovernmental conference
11
(ldquoCCLArdquo) published a document entitled ldquoProtecting civil liberties and human rights at
the G20 statement of concernsrdquo on May 21 201013 In this document the CCLA
expressed concern with the size of the security perimeter ldquoParticularly where there is a
primary fence to ensure safety around conference venues and delegate hotels any further
restrictions on mobility or protest must be fully and carefully justifiedrdquo14 However the
CCLA supported ldquothe overall goal of ensuring that the G20 is conducted in a manner that
is safe for delegates protesters and Toronto residents in generalrdquo15 and noted the
RCMPrsquos authority under the FMIOA There was no doubt expressed by the CCLA
concerning the power of police to erect security fences
By letter dated June 15 201016 Minister Bartolucci wrote to Chief Blair acknowledging
the request and stating in part
I agree that there are various sources of legal authority to support the security perimeter I also recognize the desirability of having additional sources of legal authority to ensure clarity regarding the ability of the Toronto Police Service to take the steps that it will be taking Accordingly I am pleased to inform you that a regulation has been made under the PWPA in response to your request
The Minister informed Chief Blair that O Reg 23310 had been filed with the Registrar
of Regulations and would come into force on June 21 2010 and would be revoked as of
June 28 2010 The area requested by Chief Blair to be designated as a ldquopublic workrdquo
was so designated in O Reg 23310
13 Canadian Civil Liberties Association Protecting civil liberties and human rights at the G20 statement of concerns May 21 2010 online Canadian Civil Liberties Association lthttpcclaorgwordpresswp-contentuploads201005G20-CCLA-Statement-of-Concernspdfgt14 Ibid p 415 Ibid p 316 Attached as Appendix 8 is a copy of the June 15 2010 letter
12
Four days earlier on June 11 2010 Mike McDonell the Assistant Commissioner of the
RCMP sent a letter to Chief Blair17 containing a thorough review of the statutory sources
of the RCMPrsquos duties and powers to secure intergovernmental conferences Assistant
Commissioner McDonell outlined the police authority to fully secure the G8 and G20
Summits
More specifically in relation to the Summits the RCMP will be taking measures to fulfill duties related to the protection of Internationally Protected Persons (IPPrsquos) that befall police in general and the RCMP in specific The official visit of the head of state or high ranking dignitary of a foreign country is an event that frequently engenders a real or apprehended threat to the preservation of peace which demands the adoption of proper and reasonable security measures in and by the host country
Furthermore Canada is a signatory of the United Nations Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons Including Diplomatic Agents In that regard Canada has specifically adopted laws requiring peace officers to protect IPPs as defined in section 2 of the Criminal Code in accordance with its international obligationshellip
Legal authorities also permit the RCMP to collaborate with other police forces such as the OPP in the fulfillment of its duties including in relation to securing the perimeter Such collaboration is essential in light of concurrent mandates of policing partners particularly in relation to the legal duties to preserve the peace and protect life and property
E O Reg 23310
On June 2 2010 Cabinetrsquos Legislation and Regulations Committee passed O Reg
23310 It was signed by the Lieutenant Governor on June 3 2010 and published on June
16 2010 on e-Laws a website maintained by the Government of Ontario not frequently
accessed by the public This website provides access to official copies of Ontariorsquos
statutes and regulations O Reg 23310 came into force on June 21 2010 and was
17 Attached as Appendix 9 is a copy of the June 11 2010 letter
13
revoked on June 28 2010 It was not published in The Ontario Gazette18 until July 3
2010 after it had already been revoked Section 23(2) of Ontariorsquos Legislation Act
200619 provides that a regulation is not effective against a person before the earliest of
when the person has actual notice of it the last instant on the day on which it is published
on the e-Laws website or the last instant of the day on which it is published in the print
version of The Ontario Gazette As a result though the technical requirements for
providing notice of O Reg 23310 were met I have concerns whether adequate notice
was given to the public especially in light of the fact that the regulation was not
published in The Ontario Gazette until it had already been revoked
The regulation set out the area where the security fence was to be erected and designated
that area as a ldquopublic workrdquo which then called into play all the powers provided by the
PWPA
ONTARIO REGULATION 23310
made under the
PUBLIC WORKS PROTECTION ACT
Made June 2 2010Filed June 14 2010
Published on e-Laws June 16 2010Printed in The Ontario Gazette July 3 2010
DESIGNATION OF PUBLIC WORKS
Designation 1 The following are designated as public works for the purposes of the Act 1 Everything described in clause (a) of the definition of ldquopublic workrdquo in section
1 of the Act that is located in the area described in Schedule 1 including without limitation and for greater certainty every sidewalk in that area
2 The places described in paragraphs 1 2 and 3 of Schedule 2
18 The Ontario Gazette contains Ontariorsquos legal notices and regulations19 SO 2006 c 21 Sched F
14
Revocation 2 This Regulation is revoked on June 28 2010
Commencement 3 This Regulation comes into force on the later of June 21 2010 and the day
it is filed SCHEDULE 1
AREA REFERRED TO IN PARAGRAPH 1 OF SECTION 1
The area in the City of Toronto lying within a line drawn as follows
Beginning at the curb at the southeast corner of Blue Jays Way and Front Street West then north to the centre of Front Street West then east along the centre of Front Street West to the east curb of Windsor Street then north along the east curb of Windsor Street to the centre of Wellington Street then east along the centre of Wellington Street to the centre of Bay Street then south along the centre of Bay Street to a point directly opposite the north wall of Union Station then west along the exterior of the north wall of Union Station to the centre of York Street then south along the centre of York Street continuing east of the abutments under the railway overpass and continuing south along the centre of York Street to the centre of Bremner Boulevard then west along the centre of Bremner Boulevard to the east curb of Lower Simcoe Street then south along the east curb of Lower Simcoe Street to the north curb of Lake Shore Boulevard West then west along the north curb of Lake Shore Boulevard West to the south end of the walkway that is located immediately west of the John Street Pumping Station and runs between Lake Shore Boulevard West and the bus parking lot of the Rogers Centre then north along the west edge of that walkway to the bus parking lot of the Rogers Centre then west along the south edge of the bus parking lot of the Rogers Centre to the west edge of the driveway running between the parking lot and Bremner Boulevard then north along the west edge of that driveway to the north curb of Bremner Boulevard then west along the north curb of Bremner Boulevard to the east curb of Navy Wharf Court then north along the east curb of Navy Wharf Court to the southwest point of the building known as 73 Navy Wharf Court then east along the exterior of the south wall of that building then north along the exterior of the east wall of that building to the curb of Blue Jays Way then north along the east curb of Blue Jays Way to the curb at the southeast corner of Blue Jays Way and Front Street West
SCHEDULE 2DESIGNATED PLACES REFERRED TO IN PARAGRAPH 2 OF SECTION 1
1 The area within the area described in Schedule 1 that is within five metres of a line drawn as follows Beginning at the south end of the walkway that is located immediately west of the John Street Pumping Station and runs between Lake Shore Boulevard West and the bus parking lot of the Rogers Centre then north along the west edge of that walkway to the bus parking lot of the Rogers Centre then west along the south edge of the bus parking lot of the Rogers Centre to the west edge of the driveway running between the parking lot and Bremner
15
Boulevard then north along the west edge of that driveway and ending at Bremner Boulevard
2 The area within the area described in Schedule 1 that is within five metres of a line drawn as follows
Beginning at the southwest point of the building known as 73 Navy Wharf Court then east along the exterior of the south wall of that building then north along the exterior of the east wall of that building and ending at the curb of Blue Jays Way
3 The below-grade driveway located between Union Station and Front Street West and running between Bay Street and York Street in the City of Toronto
F Information Given to Public Regarding Security Protocol
Attempts were made to inform the public about the security measures that would be in
place leading up to and throughout the G20 The City of Toronto in consultation with
the ISU produced an information article20 and flyers21 No mention is made in the article
or flyers of the PWPA or O Reg 23310 and the powers given to the police The City of
Toronto also prepared an advertisement which appeared in local newspapers22 The
original version of the advertisement made no reference to the fact that people would be
subject to a search when attempting to access the security perimeter although reference
was made to the requirement to show identification and to have a valid purpose for
entering the restricted area A later version of the advertisement included additional text
advising that anyone requesting access to the security perimeter may be subject to a
search However just as with the article and flyers no specific mention was made of the
PWPA or O Reg 23310
20 A million copies of the newsletter Our Toronto which contained an article entitled ldquoWhat to expect during the G20 ndash June 26 amp 27 2010rdquo were delivered to homes in the City of Toronto21 Approximately 10000 flyers were sent to homes and businesses within the affected area The flyercontained general information about security and the anticipated effects on traffic22 The advertisement appeared in the Toronto Star Toronto Sun and Metroland community papers
16
In the days leading up to and throughout the G20 Summit there was apparently a
misunderstanding on the part of the police regarding a purported ldquofive-metre rulerdquo This
confusion likely emanated from the ldquofive-metresrdquo referenced in Schedule 2 of O Reg
23310 However the purpose of Schedule 2 was to designate as ldquopublic work(s)rdquo three
specific private property locations on which the security fence was to be erected that were
not ldquopublic worksrdquo The remainder of the fence was on public sidewalks and streets
which are ldquopublic worksrdquo To ensure that the fence was located on a ldquopublic workrdquo the
drafters designated the area within five metres of the security fence in these three
locations as a ldquopublic workrdquo23 Unfortunately the wording of Schedule 2 was very
cumbersome and the relationship between the area defined in Schedule 1 and the five-
metre reference in Schedule 2 was difficult to understand
Because of this confusion unfortunately the message was conveyed that the regulation
provided for a five-metres zone outside the entire security fence and that therefore the
PWPA applied to this entire area24 The media reported during the G20 summit that the
police had ldquosweepingrdquo powers pursuant to the PWPA within five-metres outside of the
exterior security fence25 O Reg 23310 did not provide the police such authority
23 Attached as Appendix 10 is a copy of a map showing the three specific areas designated in Schedule 2 of O Reg 2331024 Jennifer Yang ldquoJust being near the G20 security zone can get you arrestedrdquo Toronto Star (25 June 2010) online thestarcom lthttpwwwthestarcomnewsgtatorontog20summitarticle828498--just-being-near-the-g20-security-zone-can-get-you-arrestedgt25 David Rider et al ldquoDalton McGuinty Bill Blair defend quiet boost in arrest powersrdquo Toronto Star (26 June 2010) online thestarcom lthttpwwwthestarcomnewsgtatorontog20summitarticle828974--dalton-mcguinty-bill-blair-defend-quiet-boost-in-arrest-powersgt
17
SECTION 3 COMMENTARY
A Public Policy Considerations
There are some overarching public policy considerations which affect the issues I have
been asked to address in the Terms of Reference
As stated earlier the legislation was the product of emergency World War II concerns
related to the possibility of enemy sabotage of important infrastructures The legislative
debates in September of 1939 were particularly concerned with the provincersquos
hydroelectric facilities However notwithstanding these apparently specific concerns
when drafted the definition of ldquopublic workrdquo is extraordinarily broad and from a policy
standpoint raises questions of overbreadth especially given the ability to designate
almost anything a public work In a mere definition section s 1 of the legislation allows
the Lieutenant Governor in Council to designate ldquoany other building place or workrdquo as a
ldquopublic workrdquo However taken to its logical conclusion an entire city or more could be
designated as a ldquopublic workrdquo The definition of ldquopublic workrdquo includes ldquoany provincial
and any municipal public buildingrdquo but ldquopublic buildingrdquo is not further defined thereby
creating an element of uncertainty as to the specific provincial and municipal buildings
captured by this definition While perhaps extreme measures in times of war require
flexibility in all other circumstances legislation of this nature requires limitations and a
more specialized approach
The expression ldquoprivate armyrdquo was used in the Ontario legislative debate in 1939
Theoretically at least private armies could be created through the use of the ldquoguardrdquo
appointing authority by the many individuals who are authorized to appoint guards
pursuant to the PWPA This authority was apparently in response to the Federal
18
Governmentrsquos refusal to assume through the Defence Department the responsibility of
guarding utilities and industries essential to the war effort While such a result might not
have been contemplated in a parliamentary democracy it is clearly unwise to leave such
a possibility open
Section 3 of the PWPA provides in part that a guard or a peace officer
(a) may require any person entering or attempting to enter any public work or any approach thereto to furnish his or her name and addresshellipand to state the purpose for which he or she desires to enter the public work in writing or otherwise
The primary problem I see with this section is the vagueness of the term ldquoapproach
theretordquo An approach could begin at a considerable distance from the public work
Section 6(b) also provides for the making of regulations ldquodefining the areas that
constitute approaches to public works either generally or with regard to a particular
public workrdquo
In addition s 3(b) of the PWPA provides that a guard or peace officer ldquomay search
without warrant any person entering or attempting to enter a public workrdquo This section
does not permit any person to abandon any attempt to enter a public work in order to
avoid being subjected to a warrantless search Such conduct is adopted by persons who
decide not to enter a secured courthouse in order to avoid a warrantless search
Section 4 provides that for the purposes of the PWPA the statement under oath made by
persons engaged in the operation of a public work ldquoas to the boundaries of the public
work is conclusive evidence thereofrdquo Section 4 should be considered with s 5(1) which
provides that ldquoevery person found upon a public work or any approach thereto without
lawful authority the proof whereof lies on him or her is guilty of an offencehellip(emphasis
19
added)rdquo The provision in s 4 that ldquothe statement under oathhellipis conclusive evidence
thereofrdquo appears to remove from a courtrsquos consideration what could be a legitimate
dispute as to the boundaries of a public work or the approach thereto Furthermore the
apparent reversal of the onus of proof regarding lawful authority to be found in a public
work or an approach found in s 5 is also troublesome from a policy and legal point of
view
Accordingly if utilized to the extreme many government officials could appoint many
private armies to restrict access to many (in fact any) public places where the mere
statement under oath by the private guard of the boundaries of the areas under restricted
access is conclusive proof thereof Such potential for abuse is beyond troubling to say
the least
B Review of other Public Reports
As is evident from the foregoing discussion many issues arise regarding the operation of
the PWPA in todayrsquos context These considerations and others also formed the basis of
concerns raised in public reports which I was asked to review
1 Reports of the Canadian Civil Liberties Association
The CCLA preliminary G20 report26 dealt with most of the police related events that
occurred in Toronto during the G20 conference during the weekend of June 26th and 27th
2010 I will only make reference to a few portions of the report that deal with the Terms
of Reference
26 Canadian Civil Liberties Association A Breach of the Peace ndash A Preliminary Report of Observations During the 2010 G20 Summit June 29 2010 online Canadian Civil Liberties Association lthttpcclaorgwordpresswp-contentuploads201006CCLA-Report-A-Breach-of-the-Peace-Preliminary-report-updated-July-8pdfgt
20
The report of the CCLA called for the repeal or significant amendment to the PWPA ldquoto
meet basic constitutional standardsrdquo27 The CCLA ldquosuggests that the broad police powers
granted under the Act are inconsistent with current Charter requirementsrdquo28
I agree with the observation of the CCLA that the provisions of the PWPA led to a ldquolack
of clarity as to the scope of the search and seizure powersrdquo29 which created many
difficulties and conflicts that probably could have been avoided I would also certainly
agree with a conclusory comment in this preliminary report that ldquoit is the duty of police
officers to act with fairness and equanimity toward all citizens in accordance with the law
of the country The presumption of innocence and the protection against arbitrary arrests
and detention are at the core of a commitment to justicerdquo30
The CCLA in partnership with the National Union of Public Employees organized
public hearings for two days in Toronto and one day in Montreal in November of 2010
which they referred to as a Citizens Inquiry The Citizens Inquiry heard from 63 members
of the public who had witnessed policing incidents or had been detained Several lawyers
and academics also participated in the hearing and offered commentary on the events of
the G20 from a legal or policing perspective including issues related to the PWPA A
report of the hearings titled ldquoG20 Toronto Breach of the Peace Public Hearingsrdquo was
released on February 28 2011 which also referred to the PWPA31
27 Ibid p 2228 Ibid p 929 Ibid p 1230 Ibid p 2131 Canadian Civil Liberties Association and the National Union of Public and General Employees G20 Toronto Breach of the Peace Public Hearings February 2011 online Canadian Civil Liberties Association lthttpcclaorgwordpresswp-contentuploads201102Breach-of-the-Peace-Final-Reportpdfgt
21
2 The Ontario Ombudsman Report
The Ontario Ombudsman commenced an investigation after receiving complaints relating
to a variety of issues concerning the G20 The Marin Report recognized that ldquotypically
international summits attract protests and protests can turn violent and even deadlyrdquo32
The report therefore does not quarrel with the requirement that a high level of security is
required for such events
The report in my view accurately describes the PWPA as ldquounique in Canada in terms of
the breadth of its reach and the powers it confershellipno other Canadian statute defining
lsquopublic worksrsquo contains provisions similar to those found in Ontariorsquos Actrdquo33
32 Ontario Ombudsman report Investigation into The Ministry of Community Safety and Correctional Servicesrsquo Conduct in Relation to Ontario Regulation 23310 under the Public Works Protection Act ldquoCaught in the Actrdquo by Andreacute Marin (Toronto Ombudsman of Ontario December 2010) online Ombudsman of Ontario lthttpwwwombudsmanoncamedia157555g20final1-enpdfgt (ldquoMarin Reportrdquo) at para 733 Ibid at para 97
22
SECTION 4 POWERS OF THE POLICE
Pursuant to the Terms of Reference I have been asked to consider for future purposes
whether the powers given to peace officers and guards under the PWPA are necessary to
protect public works secure intergovernmental conferences or for any other purposes
To answer that question it is necessary to assess whether the current common law and
statutory regime provide the police with sufficient powers to perform these vital services
A Common Law Powers and Powers Pursuant to Police Services Acts
The police have extensive common law powers that can be used in protecting and
securing intergovernmental conferences and in protecting public works It is necessary to
examine those powers in order to assess whether and what if any additional powers are
needed such as those provided by the PWPA
Of particular assistance in this regard is R v Knowlton34 where the Supreme Court of
Canada considered whether the powers possessed by peace officers at common law and
statute in securing an area for the protection of a foreign dignitary were lawful The
Supreme Court of Canada held that in order for the exercise of peace officer powers to be
lawful the powers must satisfy the two step test set out in R v Waterfield35 First the
power must be in furtherance of a lawful duty Traditional common law peace officer
duties include the preservation of the peace and the prevention of crime These common
law police duties amongst others are now statutorily enshrined in s 42(1) of Ontariorsquos
Police Services Act (and other provincial police services acts)36 The second part of the
test requires an evaluation of whether the conduct of the peace officer was ldquojustifiedrdquo To
34 [1974] SCR 443 [ldquoKnowltonrdquo]35 See for example R v Dedman [1985] 2 SCR 236 RSO 1990 c P15
23
do so one applies the standard of what is reasonably necessary in light of the totality of
the circumstances In evaluating whether the conduct of the peace officer was justified it
is important to consider ldquothe duty being performed the extent to which some interference
with individual liberty is necessary in the performance of that duty the importance of the
performance of the duty to the public good the nature of the liberty being interfered with
and the nature and extent of the interferencerdquo37
In Knowlton police in Edmonton cordoned off an area as part of the security
arrangements for the visit of Premier Kosygin of the USSR Premier Kosygin had been
assaulted in Ottawa a few days prior to his visit to Edmonton Knowlton entered the
secured area questioning the power of the peace officer to prevent his entry He was
arrested without a warrant and charged with obstructing a peace officer in the execution
of his duties Knowlton argued that the peace officer did not have the power to prevent
his entry and was not acting in the execution of his duty
The Supreme Court of Canada emphasized the heightened importance of security when
there are visiting foreign dignitaries38
It is notorious and of common knowledge that the official visit of the head of state or high rank dignitary of a foreign country friendly as either may be is an event that frequently engenders a real or apprehended threat to the preservation of peace and that calls therefore for the adoption of proper and reasonable security measures in and by the host countryhellipThe restriction of the right of free access of the public to public streetshellipwas one of the steps--not an unusual one--which police authorities considered and adopted as necessary for the attainment of the purpose aforesaid In my opinion such conduct of the police was clearly falling within the general scope of the duties imposed upon them
37 R v Mann [2004] 3 SCR 59 at 7938 Supra note 34 at 447-448
24
In addressing the first part of the Waterfield test the Court referenced provisions of the
Alberta Police Act and the Criminal Code and concluded that the conduct of the peace
officers fell within the general scope of the duties imposed upon them for example
preservation of the peace and prevention of crime39
According to the principles which for the preservation of peace and prevention of crime underlie the provisions of s 30 amongst others of the Criminal Code these official authorities were not only entitled but in duty bound as peace officers to prevent a renewal of a like criminal assault on the person of Premier Kosygin during his official visit in Canada In this respect they had a specific and binding obligation to take proper and reasonable steps The restriction of the right of free access of the public to public streets at the strategic point mentioned above was one of the steps--not an unusual one--which police authorities considered and adopted as necessary for the attainment of the purpose aforesaid In my opinion such conduct of the police was clearly falling within the general scope of the duties imposed upon them
In analyzing the second step of the Waterfield test the Court concluded that there was no
evidence indicating the police officers resorted to an unjustifiable use of the powers
associated with the duties imposed on them
The Court in Knowlton recognized broad police powers to cordon off areas as part of the
security arrangements involving internationally protected persons In addition the Court
found that the warrantless arrest in that case was not an unjustifiable or unreasonable use
of powers associated with the police duties to preserve the peace order public safety and
to enforce the law and prevent crime Finally the Court found that peace officers were
duty bound ldquoto prevent a renewal of a like criminal assault on the person of Premier
Kosygin during his official visit in Canadardquo40 Furthermore it stated the closing of public
39 Ibid 40 Ibid at 447
25
streets ldquowas one of the steps -- not an unusual one -- which police authorities considered
and adopted as necessaryrdquo41
The Knowlton decision clearly acknowledged that the police had the duty and authority to
establish and enforce a secured area to protect a foreign dignitary In order to carry out
these duties the police may do what is reasonably necessary in light of the totality of the
circumstances
Though Knowlton was decided prior to the enactment of the Canadian Charter of Rights
and Freedoms (the ldquoCharterrdquo) this does not in my view affect the clear statement by the
Supreme Court of Canada regarding the duty of the police under the common law and the
Alberta Police Act to provide this security While the facts of Knowlton were quite
compelling in relation to the obvious need to provide adequate security for Premier
Kosygin the decision is equally important authority regarding the general responsibilities
of the police at common law and statute in relation to the preservation of the peace
B Other Statutory Powers
1 Criminal Code
Some specific powers are provided to peace officers pursuant to the Criminal Code42
Section 31 gives peace officers the power to arrest an individual for breach of the peace
Peace officers can arrest those committing the breach of the peace or those who on
reasonable grounds heshe believe are about to join in or renew the breach of the peace
Peace officers also have powers at their disposal under ss 63-69 of the Criminal Code to
deal with the offences of unlawful assembly and riots
41 Ibid at 447-448 42 RSC 1985 c C-46
26
2 Trespass to Property Act
The Ontario Trespass to Property Act43 is a potential source of police power to arrest
without warrant those who are unlawfully on certain premises or who were recently
unlawfully on the premises and refuse to give their name and address44 This statute
deals with illegal entry into both private and public property by creating the offence of
trespass for those who without the express permission of the occupier enter on to
premises or engage in an activity on the premises when it is prohibited by the statute45
Though this statute is primarily used by private property owners to keep unwanted people
off of their property it has also been invoked by the Speaker of the House46 and by the
City of Toronto47 It must be noted however that using the Trespass to Property Act in
relation to removing individuals from ldquopublicrdquo places may raise Charter issues48
3 Foreign Missions and International Organizations Act
The RCMP as peace officers have the general duty to preserve the peace and prevent
crime and offences as set out in s 18 of the Royal Canadian Mounted Police Act49
Additional duties found in s 17 of the Royal Canadian Mounted Police Regulations
198850 include the protection of ldquointernationally protected personsrdquo as defined in s 2 of
the Criminal Code Internationally protected persons include heads of state and their
43 RSO 1990 c T2144 Ibid ss 9(1) 1045 Ibid s 2(1)46R v Behrens [2004] OJ No 5135 (CJ) The Court held that the issue of the trespass notices fell under the Speakerrsquos parliamentary privilege and were not reviewable even on the basis of a Charter argument47R v Semple [2004] OJ No 2137 (CJ)48 In R v Semple the defendants were charged under the Ontario Trespass to Property Act for entering the grounds of Toronto City Hall after being banned from doing so In the end the Court held that the defendantsrsquo peaceful entry onto the grounds was an expression as per s 2(b) of the Charter Torontorsquos notice under the Act infringed on this freedom and in these circumstances it could not be justified under s 1 of the Charter 49 RSC 1985 c R-1050 SOR88-361
27
family members The RCMPrsquos duty to protect internationally protected persons is also
found in s 6(1) of the Security Offences Act51
In addition Canada is a signatory of the United Nations Convention on the Prevention
and Punishment of Crimes against Internationally Protected Persons including
Diplomatic Agents52 This Convention provides that the Government of Canada must
protect visiting heads of state or government foreign ministers representatives or
officials of a state or any official or other agent of an international organization of an
intergovernmental character and the family members that accompany him or her The
RCMP has the responsibility to carry out these security measures
Pursuant to s 101(1) of the FMIOA ldquoThe Royal Canadian Mounted Police has the
primary responsibility to ensure the security for the proper functioning of any
intergovernmental conference in which two or more states participate that is attended by
persons granted privileges and immunities under this Act and to which an order made or
continued under this Act appliesrdquo
The powers to carry out this mandate are found in s 101(2) of the FMIOA ldquothe Royal
Canadian Mounted Police may take appropriate measures including controlling limiting
or prohibiting access to any area to the extent and in a manner that is reasonable in the
circumstancesrdquo It is noteworthy that the FMIOA has legislated the same powers
provided to the police under common law and statute
In order to trigger the RCMP powers described in s 101 the Governor in Council on the
51 RSC 1985 c S-752 UNGA Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons including Diplomatic Agents 20 February 1977 UN Doc I-15410
28
recommendation of the Minister of Foreign Affairs and pursuant to s 5 of the FMIOA
made the G8 Summit Privileges and Immunities Order 201053 on December 10 2009
This order was repealed and a subsequent order54 was made on January 13 2010 A
similar order55 for the G20 Summit was made on March 11 201056
Therefore during the G20 the RCMP had the specific statutory power to limit or
prohibit access to any area and to any extent as long as the measures were appropriate
and done in a manner that was reasonable in the circumstances ldquoThe RCMP may secure
the perimeter of the security zone on land with fencing and restrict access to this zone
through the use of checkpoints and other measuresrdquo57
Though not invoked during the G20 s 101(4) of the FMIOA provides that arrangements
can be entered into with a province concerning the responsibilities of members of the
RCMP and members of the provincial and municipal police forces with respect to
ensuring the security for the proper functioning of an intergovernmental conference No
information was provided to me as to why such an arrangement was not entered into for
the G20
These intergovernmental security provisions of the FMIOA were enacted just prior to the
G8 being held in Kananaskis Alberta in 2002 In light of violent protests at international
events and the 911 terrorist attacks in the United States the Federal Government
53 SOR2009-33654 SOR2010-1355 SOR2010-6256 Supra note 17 ldquoUpon such an Order being made the RCMP in co-operation and collaboration with other police forces becomes impressed with the primary responsibility of ensuring not only the protection of the IPPs but also ensuring lsquosecurity for the proper functioningrsquo of the intergovernmental conference To that end the FMIOA provides that the lsquoappropriate measures including controlling limiting or prohibiting access to any area to the extent and in a manner that is reasonable in the circumstancesrsquo may be takenrdquo57 Ibid
29
considered it timely ldquoto clarify in statute the present common law authority for police to
provide security and protection for high profile international eventsrdquo58 At such events it
was intended that ldquothe RCMP is the lead to make sure that security is providedrdquo59
Given that it was clearly the intention of the Federal Government to have the RCMP as
the lead police force at these international events consideration should be given to
expand the use of the FMIOA to cover all large scale international events such as the
Olympics the Pan American Games and international trade fairs as these events are
routinely attended by heads of state and senior government officials Most recently
Vancouver held the 2010 Olympic and Paralympic Winter Games60 Though federal and
municipal legislation were passed to assist in securing the Games expansion and
application of the FMIOA would have been a better approach The RCMP as the national
police force ought to be in charge pursuant to their authority under the FMIOA
4 Emergency Legislation
Through my consultations with the parties listed in Appendix 2 I heard that while we are
not in a time of war as in 1939 when the PWPA was enacted we live in an age of
international and local terrorism threats Our democratic society must be vigilant in
58 Canada House of Commons Debates 37th Parl 1st Sess No 93 (5 October 2001) at 100059 Canada House of Commons Standing Committee on Public Safety and National Security 40th Parl 3rd
Sess Evidence (25 October 2010)60 In anticipation of this event the Governor General in Council on the recommendation of the Minister of Transport pursuant to the Aeronautics Act (RSC 1985 c A-2) and the Canadian Air Transport Security Authority Act (SC 2002 c 9 s 2) passed the Vancouver 2010 Aviation Security Regulations (SOR2009-298) The purpose of the regulations was to enhance aviation security during the Games The Regulation provided for extra security and extra authorized means to conduct screenings In addition the Vancouver City Council passed the very lengthy By-law No 9962 known as the ldquoVancouver 2010 Olympic and Paralympic Winter Games By-Lawrdquo Specific security measures to be employed at a city live site (described thoroughly in a Schedule to the By-Law) that were enabled by this By-Law included The installation and monitoring of airport style and other security measures including magnetometers and X-ray machines the installation and monitoring of closed circuit television cameras the searching of any person who wished to enter on to a city live site and any bag luggage or other container carried by such person and the prohibiting of access to or removal from a city live site any person who refused to submit to a search
30
maintaining a proper level of security while recognizing that democratic values and
security issues can conflict where public order is at issue It is important to highlight that
provincial legislation exists dealing with both terrorism threats and emergency situations
I have been informed that federal and provincial counter-terrorism plans exist that
address preventing and responding to acts of terrorism
The Police Services Act regulations mandate police forces to establish procedures
consistent with federal and provincial counter-terrorism plans61 and to have policies with
respect to counter-terrorism62 In addition the Emergency Management and Civil
Protection Act allows for orders to be made in situations specifically designated an
ldquoemergencyrdquo63 by the Lieutenant Governor in Council or the Premier that regulate or
prohibit travel and movement to from or within any specified area64 Therefore the
PWPA is not needed to deal with these emergency situations as specific more recent
emergency legislation is in place for that very purpose
C Gaps in Canadian Police Powers
The Ministry of Community Safety and Correctional Services provided me with an
interesting article published in 2010 entitled ldquoThe Gap in Canadian Police Powers
61 Adequacy and Effectiveness of Police Services O Reg 399 s 2862 Ibid s 2963 Section 1 of the Emergency Management and Civil Protection Act defines an ldquoemergencyrdquo as ldquoemergencyrdquo means a situation or an impending situation that constitutes a danger of major proportions that could result in serious harm to persons or substantial damage to property and that is caused by the forces of nature a disease or other health risk an accident or an act whether intentional or otherwise (ldquosituation drsquourgencerdquo)64 RSO 1990 c E9 s 702(4)
31
Canada needs lsquoPublic Order Policingrsquo Legislationrdquo and co-authored by Wesley Pue and
Robert Diab65
This article was prompted by the debate over the cost nature and extent of security to be
employed at the Vancouver 2010 Winter Olympics The authors criticized the fact that
policing authorities in Canada ldquolack specific statutory authorization to take measures
commonly thought necessary to their missionrdquo66 These measures included security
fences in public areas designated protest areas restricted access to public space police
surveillance and searches without cause
The authors recognize that such powers may be necessary but note that ldquono legislature
has ever expressly conferred such powers on policing authorities outside the context of
international intergovernmental conferences Nor does the common law accord such
powers to state officials on its ownrdquo67 I respectfully disagree with this latter statement
It is my view the police have powers pursuant to the common law and statute as I have
discussed in the preceding section
The authors referred to R v Knowlton68 which I have previously discussed While the
authors give Knowlton a very narrow interpretation stating that ldquoits binding principle is a
good deal narrower than the words taken out of context might suggestrdquo69 I however am
of the view that the decision supports the proposition that police have a broad range of
65 Wesley Pue and Robert Diab ldquoThe Gap In Canadian Police Powers Canada Needs lsquoPublic Order Policingrsquo Legislationrdquo (2010) 28 Windsor Rev Legal Soc Issues 87 Wesley Pue is a professor of legal history at the University of British Columbia and Robert Diab is a PhD candidate at the UBC Faculty of Law66 Ibid p 8867 Ibid68 Supra note 3469 Supra note 65 p 92
32
responsibilities with deep historical roots in the common law and codified in statute a
position shared by the Federal Government when it introduced amendments to the
FMIOA The actions of the police in Knowlton were necessarily incidental to their
common law police duties and powers
The authors conclude that this ldquoauthority of police to create zones of exclusion either as
an incident of the general and ancient duties of constableshelliphas never been established in
the courtsrdquo70 I am of the view however that the role of the police in establishing
security zones relating to a crime a serious accident or other emergency is a routine and
well-accepted use of police powers pursuant to their common law and statutory duties I
am not suggesting that this common law authority permits the police to establish security
zones ldquofor the proper functioning of any intergovernmental conference in which two or
more states participaterdquo71 larger than necessary to fulfill their purpose The FMIOA as
amended in 2002 provides the RCMP with ldquoprimary responsibility to ensure the security
for the proper functioning of the intergovernmental conferencerdquo72 It is interesting
however that when the Federal Government was enacting this specific authority the
legislative debates indicated that the government was merely clarifying ldquoin statute the
present common law authority for police to provide security and protection for high
profile international eventsrdquo73
Security perimeters are routinely erected by police in the context of the commission of a
crime motor vehicle and other accidents as well as the Santa Claus parade and other
70 Ibid p 9671 Supra note 8 s 101(1)72 Ibid73 Supra note 58
33
parades It would in my view be quite impractical and unnecessary to legislate an
extensive code of police powers given their common law and statutory responsibilities to
generally maintain public order It is not advisable in my opinion to be prescriptive in
any way regarding what actions the police can take since they must assess what the
situation warrants while at the same time considering individual rights and freedoms
The details of any police response to an emergency must be tailored to the exigencies
related to the situation
The police clearly have common law and statutory authority to conduct warrantless
searches in specific situations (ldquoin exigent circumstancesrdquo)74 However when
warrantless searches must be carried out on a regular routine basis the police are acting
more like full time security guards and there should be specific statutory authority
provided to give such powers
I certainly accept the general proposition the authors assert that the mobility rights of
citizens should not be unreasonably or unfairly dealt with However one only need be
aware of the massive amount of construction taking place on the streets of Toronto as this
Report is being written to appreciate that it is not always reasonable to expect that ldquothe
rights of businesses homeowners and ordinary citizens to go about their routine
activities without interruptionrdquo75 will go unhindered While generally desirable it cannot
be legally guaranteed At the same time the authors do concede that ldquoimportant as they
74 Supra note 42 s 4871175 Supra note 65 p 89
34
are the rights of assembly movement and protest are not unqualified They can ndash and
should ndash be balanced against other important public needsrdquo76
In my view public policing at times requires innovation as it often benefits from
creative problem solving If police abuse their common law powers related to ldquopublic
order policingrdquo they are accountable to a multiplicity of authorities and the rule of law
most particularly the Charter The legal rights outlined in the Charter such as ldquothe
principles of fundamental justicerdquo77 security ldquoagainst unreasonable search and seizurerdquo78
and ldquothe right not to be arbitrarily detained or imprisonedrdquo79 are described very
generally However they were chosen deliberately as it was recognized that in each case
there is an inherent tension between imposing security measures and fundamental rights
and freedoms Determining which is paramount will be based on the facts of each case
76 Ibid p 9177 Canadian Charter of Rights and Freedoms s 7 Part I of the Constitution Act 1982 being Schedule B to the Canada Act 1982 (UK) 1982 c 1178 Ibid s 879 Ibid s 9
35
SECTION 5 LEGAL ANALYSIS OF THE PUBLIC WORKS PROTECTION ACT
A Legal Analysis of the Legislation
Many stakeholders have questioned the constitutional validity of the PWPA and O Reg
23310 The Ontario Ombudsman seriously questioned whether O Reg 23310 could
pass ldquoconstitutional musterrdquo80 The CCLA suggested that the broad police powers
granted under the PWPA were inconsistent with the Charter81
To the same effect were comments made by Premier Dalton McGuinty who described
the PWPA as ldquoan archaic law that was used to undermine Torontoniansrsquo civil rights
during the G20rdquo82 He elaborated83
The issue is whether itrsquos appropriate given our present-day values and given an old law which I am confident doesnrsquot strike the balance that you and I would want today in terms of public safety and individual freedom of expressionhellipWhen you start talking about civil rights individual freedoms yoursquore talking about those things that in fact define us as a free and democratic societyhellipItrsquos something that is real and meaningful and important to all of us
The Terms of Reference for this Review do not require that I conduct a constitutional
analysis of the PWPA I have however been asked to consider areas for reform and if
appropriate make specific recommendations for amendment or repeal This does require
that I therefore consider whether the legislation may be vulnerable to constitutional
challenge
Section 2(b) of the Charter guarantees everyone the fundamental freedom of expression
The definition of ldquoexpressionrdquo has been interpreted broadly ldquoActivity is expressive if it
80 Supra note 32 at para 23381 Supra note 26 p 982 Robert Benzie and Rob Ferguson ldquoMcGuinty shifts focus to fixing G20 lawrdquo Toronto Star (10 December 2010) online thestarcom lthttpwwwthestarcomnewscanadaarticle905436--mcguinty-shifts-focus-to-fixing-g20-lawgt 83 Ibid
36
attempts to convey meaningrdquo84 While freedom of expression is not absolute there is
very little that is not considered expression However expression that advocates violence
is not protected under s 2(b)85
The Supreme Court of Canada in Committee for the Commonwealth of Canada v
Canada held that s 2(b) ldquodoes not encompass the right to use any and all government
property for purposes of disseminating onersquos views on public matters but I have no doubt
that it does include the right to use for that purpose streets and parks which are dedicated
to the use of the public subject no doubt to reasonable regulation to ensure their
continued use for the purposes to which they are dedicatedrdquo86 It seems clear that
protesting in public streets is a form of expression protected by s 2(b) Protesting at an
intergovernmental conference is clearly expressive in nature
In challenges alleging that a statute contravenes s 2(b) of the Charter a court would
examine whether the purpose or effect of a law contravenes section 2(b)87 There is no
reason to suggest that the purpose of the PWPA was to infringe the freedom of
expression The purpose of the PWPA is to protect important public infrastructures A
court would then have to consider whether the effect of the PWPA may have resulted in
an infringement of freedom of expression
O Reg 23310 defined significant portions of downtown Toronto as a ldquopublic workrdquo
Section 3(c) of the PWPA allows peace officers to refuse entry into public works which
therefore limits the areas in which protesters could express themselves By creating the
84 Irwin Toy Ltd v Queacutebec (Attorney General) [1989] 1 SCR 927 at 96885 Ibid at 97086 [1991] 1 SCR 139 at 165-16687 Peter Hogg Constitutional Law of Canada loose-leaf (consulted on 7 January 2011) 5th ed (Toronto Thomson Reuters Canada Limited 2007) at 43-6
37
relatively large security perimeter designated by the regulation individuals may allege
they were not permitted to communicate directly with those they were protesting against
Furthermore individuals could not communicate in public places such as public streets
where the right to freedom of expression has previously been found to exist88
Commissioner Ted Hughes completed an interim report following a public hearing into
the complaints regarding events that took place with respect to the Asia Pacific Economic
Cooperation (APEC) Conference in Vancouver British Columbia in November 1997
Commissioner Hughes recommended that generous opportunity should be afforded to
peaceful protesters to be seen in their protest activities by guests at the event89
Section 7 of the Charter provides that ldquoEveryone has the right to life liberty and security
of the person and the right not to be deprived thereof except in accordance with the
principles of fundamental justicerdquo The PWPA raises issues regarding the liberty and
security of the person in providing for warrantless searches and stopping for
identification Furthermore vague laws offend two fundamental values of our legal
system90 Firstly individuals are not provided with sufficient guidance as to what
behaviour a law prohibits Secondly those in charge of enforcing the law are not
provided with clear guidance as to how to enforce it A vague law can lead to inconsistent
and arbitrary enforcement91
88 Supra note 86 89 Canada Commission for Public Complaints Against the RCMP APEC ndash Commission Interim Report (31 July 2001) at s 3111 (Commissioner Ted Hughes QC) online Commission for Public Complaints Against the RCMP lthttpwwwcpc-cppgccaprrrepphrapecapec-31-engaspxgt90 Supra note 87 at 47-60 91 ldquoA vague provision does not provide an adequate basis for legal debate that is for reaching a conclusion as to its meaning by reasoned analysis applying legal criteria It does not sufficiently delineate any area of risk and thus can provide neither fair notice to the citizen nor a limitation of enforcement discretion Such
38
As described by Professor Hogg92
The requirement that any limit on rights be prescribed by law reflects two values that are basic to constitutionalism or the rule of law First in order to preclude arbitrary and discriminatory action by government officials all official action in derogation of rights must be authorized by law Secondly citizens must have reasonable opportunity to know what is prohibited so that they can act accordingly Both these values are satisfied by a law that fulfils two requirements (1) the law must be adequately accessible to the public and (2) the law must be formulated with sufficient precision to enable people to regulate their conduct by it and to provide guidance to those who apply the law
As I stated earlier the phrase ldquoany approach theretordquo contained in s 3(a) of the PWPA is
potentially vague No criteria are provided to assist in determining when one is on ldquoany
approach theretordquo A phrase such as ldquoany approach theretordquo is subject to many potential
interpretations It is arguable that this language does not provide reasonable guidance for
individuals to obey the law and for the law to be consistently enforced
Section 8 of the Charter provides that ldquoEveryone has the right to be secure against
unreasonable search or seizurerdquo A warrantless search or seizure is only reasonable if the
search was authorized by law the law itself is reasonable and the manner in which the
search carried out was reasonable93 The fact that no reasonable or probable suspicions
are needed to carry out a search pursuant to s 3(b) of the PWPA raises some issues The
only prerequisite to such a search is that the person or vehicle being subjected to a search
is entering or attempting to enter a public work
a provision is not intelligible to use the terminology of previous decisions of this Court and therefore it fails to give sufficient indications that could fuel a legal debaterdquo (R v Nova Scotia Pharmaceutical Society [1992] 2 SCR 606 at 639-640) 92 Supra note 87 at 38-1293 R v Nolet [2010] SCJ No 24 at para 21
39
Whether the PWPArsquos s 3(b) authority to undertake warrantless searches is ldquoreasonablerdquo
depends on the reasonableness of the impact on the subject of the search ldquoThe
individuals reasonable expectation of privacy must of course be balanced against the
public interest in effective law enforcementrdquo94 It is harder to justify a warrantless search
where the reasonable expectation of privacy is higher For example interference with
bodily integrity will raise the standard of reasonableness Conversely in situations where
people expect to have a lower level of privacy the standard to prove reasonableness is
lower
One rightfully has some expectation of privacy when in public but it does not rise to the
level of privacy that one expects in onersquos home The expectation of privacy further
decreases when one attempts to enter a ldquopublic workrdquo especially in the context of a
secured barrier to an intergovernmental conference
Section 9 of the Charter provides that ldquoEveryone has the right not to be arbitrarily
detained or imprisonedrdquo95 Under s 3(a) of the PWPA a person entering or attempting to
enter or approach a public work must provide his or her name and address and state the
purpose for which he or she desires to enter the public work In order for a guard or
peace officer to carry out this duty the guard or peace officer may ldquostoprdquo the person from
further approaching or entering the public work and the person is not permitted under the
statute to decide not to enter By so doing it is arguable the guard or peace officer has
assumed control over the movement of the individual by a demand or direction The
94 R v Rao [1984] OJ No 3180 at para 79 (CA)95 ldquoDetention under s 9hellipof the Charter refers to a suspension of the individualrsquos liberty interest by a significant physical or psychological restraint Psychological detention is established either where the individual has a legal obligation to comply with the restrictive request or demand or a reasonable person would conclude by reason of the state conduct that he or she had no choice but to complyrdquo (R v Grant [2009] SCJ No 32 at para 44)
40
PWPA provides for a significant legal consequence if the demand or direction is not
followed since ldquoEvery person who neglects or refuses to comply with a request or
direction made under this Act by a guard or peace officer and every person found upon a
public work or any approach thereto without lawful authority the proof whereof lies on
him or her is guilty of an offence and on conviction is liable to a fine of not more than
$500 or to imprisonment for a term of not more than two months or to bothrdquo96
Pursuant to s 3(b) of the PWPA a guard or peace officer may search any person entering
or attempting to enter a public work These searches would necessitate the detention of a
person If a guard or peace officer performs such a search he or she has taken control
over the movement of the person by a demand or direction The same serious legal
consequence results from failing to obey this demand or direction as that which results
from failing to obey the demand or direction pursuant to s 3(a) of the PWPA As a
result ldquodetentionsrdquo could occur pursuant to both s 3(a) and s 3(b) of the PWPA
The question that would need to be addressed in any challenge to the PWPA is whether
the detentions permitted by the PWPA are arbitrary in nature The use of the term ldquoany
approach theretordquo is vague and imprecise A person could be deemed to be on ldquoany
approach theretordquo a great distance from the entrance of a public work and their detention
might very well be arbitrary In addition the fact that the guards and peace officers
determine the boundaries of the ldquoapproachesrdquo which cannot be contested seems
arbitrary as well as who they chose to search
96 It should be noted that not all communications with state authorities and police officers will amount to a detention The question is whether a person may reasonably believe that he or she is free to refuse to comply
41
Section 11(d) of the Charter provides that ldquoAny person charged with an offence has the
right to be presumed innocent until proven guilty according to law in a fair and public
hearing by an independent and impartial tribunalrdquo This requires that the Crown have the
burden of proving the guilt of an individual charged with an offence97 Provisions that
place the burden on the accused to disprove on the balance of probabilities an essential
element of an offence raises s 11(d) concerns because convictions would be possible
even if reasonable doubt existed98 The presumption of innocence is not only infringed
upon by a requirement that an accused disprove an essential element of an offence but
also any requirement on an accused to prove a fact on the balance of probabilities to
avoid conviction
Section 5(1) of the PWPA states that ldquoEvery person who neglects or refuses to comply
with a request or direction made under this Act by a guard or peace officer and every
person found upon a public work or any approach thereto without lawful authority the
proof whereof lies on him or her is guilty of an offence and on conviction is liable to a
fine of not more than $500 or to imprisonment for a term of not more than two months or
to bothrdquo For the offence of being found upon a public work or on any approach to a
public work without lawful authority the burden of proof has been ldquoshiftedrdquo from the
Crown to the accused to prove lawful authority
As the foregoing analysis reveals there are certainly many concerns that arise when one
places the PWPA under the lens of the Charter However the rights and freedoms
provided by the Charter are not absolute They are ldquosubject only to such reasonable
97 R v Oakes [1986] 1 SCR 10398 Ibid at 132
42
limits prescribed by law as can be demonstrably justified in a free and democratic
societyrdquo99
In assessing whether a law which infringes the Charter is saved by s 1 a court examines
both the object of the law and the measures taken to achieve that objective A lawrsquos
objective achieves the status of being sufficiently important to justify overriding a
Charter right only when it is consistent with the values of a free and democratic society
The objective must relate to pressing and substantial concerns and not concerns that are
trivial and must be focussed on ldquothe realization of collective goals of fundamental
importancerdquo100 The measures adopted must be ldquorationally connectedrdquo to the objective of
the law101 The measures ldquoshould impair lsquoas little as possiblersquo the right or freedom in
questionrdquo102 Furthermore there must be ldquoa proportionality between the effects of the
measures which are responsible for limiting the Charter right or freedom and the
objective which has been identified as of lsquosufficient importancersquordquo103
An issue that may affect whether the potential limitation on rights and freedoms of the
PWPA and O Reg 23310 were ldquoprescribed by lawrdquo is whether the regulation was
adequately accessible to the public The Ontario Ombudsman the CCLA and the Ontario
Bar Association (ldquoOBArdquo) all noted a lack of notice regarding O Reg 23310 and its
effects prior to and during the G20 While the text of the regulation was available prior
99 Charter s 1 The Superior Court of Quebec decision of Tremblay v Queacutebec (Attorney General) [2001] JQ No 1504 (CS) involved an interim injunction brought by an applicant who was denied entry into the secured perimeter during the 2001 Summit of the Americas in Queacutebec City The applicant sought an injunction to either eliminate the security barrier or to be given a pass to let him within the secured perimeter Even though the Court held that the erection of the security zone violated the applicantrsquos right to freedom of expression and peaceful assembly The court held that the infringement was ldquodemonstrably justified in a free and democratic societyrdquo100 Supra note 97 at 136101 Ibid at 139102 Ibid103 Ibid
43
to the G20 it was only available on a website not frequently accessed by the public
Since O Reg 23310 was not published in The Ontario Gazette until after it was
revoked it may be that the regulation was not adequately accessible to the public
Reverse onus offences have been found to be ldquorationally connectedrdquo when there is plainly
a rational connection between the proven fact and the fact to be presumed Reverse
onuses have also been upheld when the burden placed on the Crown would be virtually
impossible to meet (such as proving sanity)104 Even if the accused only has the burden
of disproving the fact that heshe did not have lawful authority to be in a public work or
on an approach thereto there may not be a rational connection between the proven fact
and the fact to be presumed
The history of threats and violence at previous intergovernmental conferences
demonstrated that the protection of G20 participants was a pressing and substantial
concern However given the broadness of the PWPA every exercise of it raises the
potential for Charter scrutiny
Recommendation
Given the public policy considerations I have raised regarding the PWPA and Charter
concerns that could arise I recommend that the PWPA be repealed after the Province has
considered potential policy and security gaps as a result of its repeal
B Other uses of the Public Works Protection Act
It appears from my consultations with stakeholder groups that if the PWPA is repealed
104 R v Chaulk [1990] 3 SCR 1303 at 1340
44
there are two areas which may require legislation to provide specific peace officer
powers These two areas are court security and the protection of nuclear power facilities
and other power generating infrastructures
1 Court Security
During my decade as Ontariorsquos Attorney General (1975 to 1985) there were three
murders in provincial courthouses as well as many threats to members of courthouse staff
and others As violent acts in courthouses can be anticipated courtroom security is often
required
Individuals are compelled to go to court for a variety of reasons such as appearing as an
accused as a witness or for jury duty To provide protection to those who work there or
are compelled to attend an adequate level of court security may require a search without
warrant of each and every individual who seeks to enter a courthouse It is not reasonable
to require prior judicial authorization for each search that takes place
The courts have considered the constitutionality of these provisions of the PWPA in
conjunction with section 137 of the Ontario Police Services Act in the context of court
security
Section 137 of the Ontario Police Services Act imposes a responsibility on municipal
police services boards to secure the premises where court proceedings are conducted and
includes
1 Ensuring the security of judges and of persons taking part in or attending proceedings
45
2 During the hours when judges and members of the public are normally present ensuring the security of the premises
3 Ensuring the secure custody of persons in custody who are on or about the premises including persons taken into custody at proceedings
4 Determining appropriate levels of security for the purposes of paragraphs 1 2 and 3
In R v Campanella105 Ms Campanella was attending the John Sopinka Courthouse in
Hamilton At the courthouse there were signs posted stating that those who entered
would be searched for weapons When Ms Campanellarsquos bag was searched marijuana
was found and she was charged with the possession of marijuana She argued that her s
8 Charter protection against unreasonable search and seizure had been violated and the
marijuana discovered during the search should therefore be excluded as evidence The
trial judge and the summary convictions appeal court rejected the section 8 Charter
argument and the appellant appealed to the Ontario Court of Appeal
The Ontario Court of Appeal agreed that ldquogiven the importance of the government
objective and the context in which these searches take place it is reasonable to authorize
warrantless searches of those entering courthouse facilitiesrdquo106 The Court stated ldquothe
only effective way to diminish the risk in a large courthouse is to subject everyone
without prior security clearance to some kind of inspection I can see no other feasible
means of achieving the aimrdquo107
The Court also pointed out the concern relating to the erosion of the benefits and
105 [2002] OJ No 5104 (SCJ) affrsquod [2005] OJ No 1345 (CA) [ldquoCampanellardquo]106 R v Campanella [2005] OJ No 1345 at para 17 (CA)107 Ibid at para 19
46
protections conferred by s 8 of the Charter108
I am sensitive to the concern that we should not erode the benefits and protections of s 8 by gradually sanctioning ever-greater intrusions into privacy because of unfounded fears We should not lightly accept that searches in public places are justified solely because people have become used to them and expect them However the record in this case establishes the justification for the kinds of searches carried out in this case
Ultimately the appeal was dismissed and s 137 of the Police Services Act and s 3(b) of
the PWPA) were held to comply with s 8 of the Charter109
In its consultations with me the OBA similarly stated that the existing nature of court
security is necessary and is generally ldquowell toleratedrdquo At the same time however it
submits that the security regime should not be ldquoshoehornedrdquo into the PWPA regime and
that it would be preferable to provide a legislative framework tailored for the specific
security requirements While the PWPA has been relied upon as support for the exercise
of powers by the police in providing court security the OBA submits that the PWPArsquos
ldquosingle security schemerdquo which declares something a ldquopublic workrdquo is an ldquoawkward
blunt instrument in a world where more specialized tools are necessaryrdquo When
warrantless searches are being done on a routine basis it is advisable to have specific
legislation providing peace officers with such power
Recommendation
Court security legislation is currently in place in many jurisdictions across Canada and
contain provisions that permit warrantless searches of persons wanting to access a
108 Ibid at para 25109 The Court in R v SS [2005] OJ No 5002 (SCJ) agreed with the findings and rationale of the Court of Appeal in Campanella
47
courthouse The constitutional validity of such legislation in Manitoba was upheld by that
provincersquos highest court110
Given the ongoing need for warrantless searches at courthouses the Province of Ontario
should consider specific court security legislation in Ontario to support the security
measures in our courthouses if the PWPA is to be repealed taking into consideration the
responsibilities of the municipal police services boards provided in s 137 of the Police
Services Act This legislation should only be passed after proper notice consultation and
legislative debate
2 Power Generating Infrastructures
It is clear from the submissions that I received from representatives of OPG and the
Canadian Nuclear Safety Commission (ldquoCNSCrdquo) that the PWPA currently plays a role in
providing security officers with the powers to secure power generating infrastructures
including the ability to carry firearms and the ability to stop and require identification
from those in proximity to those nuclear plants
Security is of the utmost importance in protecting a nuclear power plant Members of the
public do not need to access a nuclear or similar power facility unless employed at the
facility or carrying out work for the facility111
The security of areas within nuclear power plants is governed by the Nuclear Security
110 R v Lindsay [2004] MJ No 380 (CA) 111 Though the discussion focuses on nuclear power plants I have been informed that other power generating infrastructures use the PWPA to designate their security officers as guards As a result if the PWPA is repealed it will be necessary to broaden the consultations in relation to these other power generating infrastructures
48
Regulations112 Every nuclear power plant must be located within a ldquoprotected areardquo113
This protected area is the area within a fenced perimeter which is alarmed and
continually patrolled This area must be equipped with devices that employ two
independent systems to detect intrusion into the area114 The Nuclear Security
Regulations also provide detailed specifications for the barrier which must enclose the
protected area115 In addition licensees must ldquoidentify all vital areas and implement
physical protection measures ndash including access control and measures designed to delay
unauthorized accessrdquo116
The Nuclear Security Regulations also provide detailed provisions regarding entry into
protected areas No person can ldquoenter a protected area without physical proof of the
recorded authorization of the licenseerdquo117 Further to this on entry into a protected area
ldquothat personrsquos identity shall be verified by two separate personnel identity verification
systems one of which is an access card reader and the other of which is a biometric
personnel identity verification devicerdquo118 Licensees must also ldquoensure that vehicle
portals are used for the entry and exit of land vehicles into and from a protected areardquo119
Physical protection measures are also required to reduce the chance of a forced land
vehicle entry into a protected area120
The power to conduct searches upon entry to a protected area is also provided by the
112 SOR2000-209 113 Ibid s 8114 Ibid s 11(a)(i)115 Ibid s 9116 Ibid s 141117 Ibid s 17(1)118 Ibid s 171119 Ibid s 91(1)120 Ibid s 91(4)
49
Nuclear Security Regulations Signs must be posted that are visible to people about to
enter the protected area stating that they must allow a nuclear security officer (ldquoNSOrdquo) to
ldquosearch them and everything in their possession including any land vehicle for weapons
and explosive substancesrdquo121 In addition when leaving the protected area people must
allow NSOs to ldquosearch them and everything in their possession including any land
vehicle for Category I II or III nuclear materialrdquo122 People are not permitted to enter or
leave a protected area unless these searches are carried out123 The Nuclear Security
Regulations provide for the method of search including ldquoa hand-held scanner a walk-
through scanner or any similar devicerdquo124 In addition if an NSO determines it
necessary a frisk search can be carried out by a person of the same sex125
I have been informed that the area outside of but adjacent to the ldquoprotected areardquo is
referred to as the ldquocontrolled areardquo This area includes roadways and waterways within
the nuclear facilityrsquos property boundaries adjacent to or in close proximity to the nuclear
power plantrsquos protected area and may be generally accessible to the public
As a result of the September 11 2001 terrorist attacks the Nuclear Security Regulations
were amended to require that high security nuclear facilities maintain an on-site armed
Nuclear Response Force (ldquoNRFrdquo)126 The NRF is composed of specialized NSOs
Section 32 of the Nuclear Security Regulations requires the NRF to be capable of making
an effective intervention taking into account the threat
121 Ibid s 27(1)(a)122 Ibid s 27(1)(b)123 Ibid s 27(2)124 Ibid s 27(5)(a)125 Ibid s 27(5)(b)126 Ibid s 32
50
Members of the NRF are mandated by the Nuclear Security Regulations to be ldquotrained in
the use of firearms authorized to carry firearms in Canada and qualified to use themrdquo127
However to satisfy this requirement the NRF resorts to the PWPA since the federal
regulations do not authorize the NRF to carry firearms without a licence However
under s 2(1) of the PWPA NSOs are designated as ldquoguardsrdquo with the powers of a peace
officer most significantly to carry and use firearms without having to be licensed128
Such a designation also enables the OPG to acquire and dispose of firearms
In the consultations I had with the OPG and the CNSC they advised me that NSOs
receive training equivalent to Canadian police standards and that NRF officers receive
training equivalent to federal and provincial police tactical team requirements
Another aspect of the PWPA used to secure nuclear power plants relates to powers
exercised by NSOs in ldquocontrolled areasrdquo The federal regulations do not provide the
NSOs with any power to demand identification within this area However pursuant to
the PWPA as appointed ldquoguardsrdquo the NSOs have the power to demand identity
verification in the controlled area They also have the authority to arrest anyone who
obstructs NSOs in the performance of their duties under the PWPA
In addition to using the PWPA to secure the controlled areas I have been advised by the
OPG that NSOs use powers pursuant to the PWPA to secure areas within 100 metres of a
nuclear facilityrsquos property line immediately adjacent to the controlled area These powers
are exercised under the broad language of the PWPA regarding ldquoapproaches to public
127 Ibid s 1 (on-site nuclear response force definition)128 Section 11707 of the Criminal Code exempts peace officers from licensing requirements for possessing firearms and other prohibited and restricted weapons
51
worksrdquo This is an illustration of the problem with the vagueness of this language in the
legislation As these powers are exercised on public land they could be challenged as a
potential infringement on individual rights and freedoms However I have been advised
that there have been no such incidents to date The need to ensure the security of these
facilities must be taken into the balance
NSOs must be able to monitor and control access to the controlled areas and areas close
to a nuclear power plantrsquos property line This provides for a more secure perimeter
around these facilities They need authority to challenge individuals acting in a suspicious
manner or conducting surveillance of nuclear facilities The OPG has informed me that
areas outside a nuclear facilityrsquos property line immediately adjacent to the controlled
area are still close enough to take advantage of the short distance to conduct intelligence
using high-powered surveillance equipment These nuclear power plants are not located
on isolated islands and are therefore vulnerable Both the Pickering Nuclear Generating
Station and the Darlington Nuclear Generating Station operate within major urban areas
being 30 km and 60 km east of downtown Toronto respectively I am advised that
previous events such as ldquoThe Toronto 18rdquo129 have shown that those intent on targeting
vital infrastructure such as power generating facilities often use reconnaissance and
intelligence gathering as precursor tactics
Recommendation
If the PWPA is to be repealed it is imperative that those who secure our nuclear and
power generating facilities be given the requisite specific legislative powers to do so
129 See for example ldquoLast 2 Toronto 18 accused found guiltyrdquo CBC News (23 June 2010) online cbcca lthttpwwwcbccanewscanadatorontostory20100623toronto-18-verdicthtmlgt
52
The source for these powers should be set out in the federal Nuclear Security
Regulations However if this is not a desired option the Government of Ontario must
consider specific legislation setting out the specific powers required to properly secure
these facilities and the specific location in which these powers can be exercised Such
legislation should not be passed without proper notice consultation and legislative
debate
53
SECTION 6 CONCLUSION
The PWPA was enacted in 1939 to support the war effort At the time the protection of
Ontariorsquos hydroelectric facilities from sabotage was of particular concern Since then the
PWPA has been used to provide the legal foundation for the powers exercised by the
police in providing court security and even more recently by the OPG in securing
nuclear power facilities In June 2010 the PWPA was used to provide powers to secure
intergovernmental conferences The vagueness of the PWPA permits it to be used in
situations when it is arguably not necessary and potentially abusive In my view the
PWPA has been used for purposes beyond its original intent
The time for the PWPA seems to have passed If the Government of Ontario enacts as I
have suggested specific legislation to provide for courthouse security and power
generating infrastructure security it would appear that there is no longer a need for the
PWPA I am also mindful of the existence of counter-terrorism and emergencies
legislation to deal with these situations as they arise
ldquoIn determining the boundaries of police powers caution is required to ensure the proper
balance between preventing excessive intrusions on an individualrsquos liberty and privacy
and enabling the police to do what is reasonably necessary to perform their duties in
protecting the publicrdquo130 The overly broad and vague language of the PWPA does not
strike this required balance with individual rights and freedoms
The late Justice Jackson of the United States Supreme Court stated that every
emergency power once conferred ldquolies about like a loaded weapon ready for the hand of
130 R v Clayton [2007] 2 SCR 725 at 742
54
any authority that can bring forward a plausible claim of an urgent needrdquo131 The need to
protect the public must be balanced with the requirement to preserve fundamental rights
and freedoms
Yet at the same time ldquoCanadians are entitled to demand the best public order policing
possible from their governmentrdquo132 There is no question that we live in a different world
post 911 We live in difficult times with constant threats both domestically and from
abroad The police clearly need to be given adequate powers to carry out their duties
The police use their expertise on a daily basis to assess the powers they require In
instances when they take action that exceeds their powers their actions are examined by
various mandated bodies This process I believe results in the proper balance between
police powers and individual rights and freedoms Therefore any legislation that purports
to grant special police powers must be specific and direct and developed in consultation
with stakeholders and tested through thorough debate in our transparent democratic
system
131 Korematsu v United States 323 US 214 (1944)132 Supra note 26 p 8
55
SECTION 2 THE PUBLIC WORKS PROTECTION ACT
A History of the Public Works Protection Act
The PWPA was enacted in 1939 It in addition to other legislation was passed during an
emergency session of the Ontario Legislative Assembly in response to Canadarsquos entry
into World War II and was considered important in supporting the war effort Lieutenant
Governor Albert Matthews in his throne speech outlined the context in which the
legislation was being passed5
We meet today under circumstances of the utmost gravity The possibility of war in which we are now engaged was fully realized and debated by you at the last session when you passed unanimously a resolution calling in such event for the complete mobilization of all our resources
Legislation calculated to give effect to the determination then expressed will be immediately submitted to you You will be asked to pass measures designed to increase agricultural and industrial production and for the protection of our vital public works and services (emphasis added)
Reports of the legislative debates held in 19396 indicate that protecting the provincersquos
hydroelectric facilities from sabotage was of particular concern The Ontario Government
had asked the Federal Government to provide members of the Canadian military to guard
these works The Federal Government refused and the PWPA was the provincial
response Concerns about restriction on civil liberties were raised in relation to another
bill that would have required permits for the holding of public meetings in public places
however no such concerns were raised in relation to the PWPA The only constitutional
issue raised in debate regarding the PWPA related to whether the Federal Government
was responsible for providing the necessary guards to protect public works as opposed to
requiring provinces to establish ldquoprivate armiesrdquo
5 Ontario Speech of the Throne 20th Parl 4th Sess (19 September 1939)6 Attached as Appendix 4 is a copy of the reports of the legislative debates Note This is the best available copy
3
The PWPA has undergone only minor amendments since 1939 Shortly after it was
enacted two Orders in Council were passed designating areas around the Canadian
General Electric Company Limited and The Canadian Car and Foundry Company as
ldquopublic worksrdquo In 1950 a provision regarding the recovery of certain fines was deleted
In 1960 the provision regarding the appointment of guards was moved from near the end
of the PWPA to closer to the beginning In 1972 the PWPA was amended to reassign
certain responsibilities from the Attorney General to the Solicitor General It was
amended again in 1989 to increase the fine for an offence under the PWPA from $100 to
$500 There have also been some other minor changes of wording since 1939
B Current Uses of the Public Works Protection Act
Although there is legislation in other provinces that defines ldquopublic worksrdquo for other
purposes there is no jurisdiction in Canada which has legislation similar in nature to the
PWPA
As the PWPA was enacted in 1939 as an emergency wartime statute it is perhaps not
surprising that it is relied upon today in only limited circumstances Prior to the G20 the
PWPA had only been relied upon to conduct searches at courthouses in the context of
providing courthouse security This use of the PWPA was upheld by the courts7 In
addition since September 2001 the PWPA has been used by Ontario Power Generation
(ldquoOPGrdquo) to empower its guards to secure its nuclear and non-nuclear power generating
facilities
7 See for example R v Campanella [2002] OJ No 5104 (SCJ) affrsquod [2005] OJ No 1345 (CA) and R v SS [2005] OJ No 5002 (SCJ)
4
C Outline of the Public Works Protection Act
Given the fact that the PWPA is a short statute I am reproducing it here in its entirety for
ease of reference
The Public Works Protection Act
Definitions 1 In this Act
ldquoguardrdquo means a guard appointed under this Act (ldquogardienrdquo)
ldquohighwayrdquo means a common or public highway or a part thereof and includes any street bridge and any other structure incidental thereto and any part thereof (ldquovoie publiquerdquo)
ldquopublic workrdquo includes
(a) any railway canal highway bridge power works including all property used for the generation transformation transmission distribution or supply of hydraulic or electrical power gas works water works public utility or other work owned operated or carried on by the Government of Ontario or by any board or commission thereof or by any municipal corporation public utility commission or by private enterprises
(b) any provincial and any municipal public building and (c) any other building place or work designated a public work by the Lieutenant
Governor in Council (ldquoouvrage publicrdquo) RSO 1990 c P55 s 1
Guards appointment 2(1)For the purpose of protecting a public work guards may be appointed by (a) the Solicitor General
(b) the Commissioner of the Ontario Provincial Police Force (c) any inspector of the Ontario Provincial Police Force
(d) the head or deputy head of the municipal council or the chief of police of the municipality in which the public work is located or the person acting in the place or stead of the head or deputy head
(e) the chair or other person who is the head of a board commission or other body owning or having charge of the public work or the person acting in the place or stead of the chair or other person
Powers of guard (2)Every person appointed as a guard under this section has for the purposes of this
Act the powers of a peace officer
5
Duties of guard (3)Subject to the regulations and to any special direction of the Solicitor General or
the Commissioner of the Ontario Provincial Police Force every guard shall obey all directions of the person appointing him or her any inspector of the Ontario Provincial Police Force the chief of police of the municipality in which is located the public work that he or she is protecting and the person who is in charge of the protecting of the public work
Breach of duty of guard (4)Every guard who (a) neglects or refuses to obey a direction that he or she is required to obey under
subsection (3) (b) fails in any manner to carry out his or her duties as guard
(c) leaves the location to which he or she is assigned as guard or ceases to act as guard without leave of any of the persons mentioned in subsection (3) or
(d) otherwise conducts himself or herself in a manner not consistent with his or her duties as guard
is guilty of an offence and on conviction is liable to a fine of not more than $500 or to imprisonment for a term of not more than two months or to both RSO 1990 c P55 s 2
Powers of guard or peace officer 3A guard or peace officer (a) may require any person entering or attempting to enter any public work or any
approach thereto to furnish his or her name and address to identify himself or herself and to state the purpose for which he or she desires to enter the public work in writing or otherwise
(b) may search without warrant any person entering or attempting to enter a public work or a vehicle in the charge or under the control of any such person or which has recently been or is suspected of having been in the charge or under the control of any such person or in which any such person is a passenger and
(c) may refuse permission to any person to enter a public work and use such force as is necessary to prevent any such person from so entering RSO 1990 c P55 s 3
Statement under oath to be conclusive evidence 4For the purposes of this Act the statement under oath of an officer or employee
of the government board commission municipal or other corporation or other person owning operating or having control of a public work as to the boundaries of the public work is conclusive evidence thereof RSO 1990 c P55 s 4
Refusal to obey guard etc 5(1)Every person who neglects or refuses to comply with a request or direction
made under this Act by a guard or peace officer and every person found upon a public
6
work or any approach thereto without lawful authority the proof whereof lies on him or her is guilty of an offence and on conviction is liable to a fine of not more than $500 or to imprisonment for a term of not more than two months or to both
Arrest (2)A guard or peace officer may arrest without warrant any person who neglects
or refuses to comply with a request or direction of a guard or peace officer or who is found upon or attempting to enter a public work without lawful authority RSO 1990 c P55 s 5
Regulations 6The Lieutenant Governor in Council may make regulations
(a) providing for the organization co-ordination supervision discipline and control of guards
(b) defining the areas that constitute approaches to public works either generally or with regard to a particular public work
(c) respecting any matter necessary or advisable to carry out effectively the intent and purpose of this Act RSO 1990 c P55 s 6
1 Discussion of Key Sections
(a) Definition of ldquoPublic Workrdquo
Section 1 defines ldquopublic workrdquo very broadly There are at least three classes of public
works The first class includes certain transportation infrastructure (ldquorailway canal
highway bridgerdquo) energy infrastructure (ldquopower works including all property used for
the generation transformation transmission distribution or supply of hydraulic or
electrical power gas worksrdquo) other public utilities (ldquowater works public utilityrdquo) and
other ldquoworksrdquo generally (ldquoor other workrdquo) This first class of public works may be
publicly or privately owned (ldquoowned operated or carried on by the Government of
Ontario or by any board or commission thereof or by any municipal corporation public
utility commission or by private enterprisesrdquo)
The second class of defined ldquopublic worksrdquo includes all provincial and municipal
buildings ldquoPublic buildingrdquo is not defined It would appear to clearly include buildings
7
such as the Legislative Assembly courthouses and city halls and likely includes
provincially or municipally owned buildings used for governmental purposes It would
also seem to include provincially or municipally owned buildings used for other
purposes such as libraries for example
The third class of ldquopublic worksrdquo includes any other building place or work designated
as a public work by the Lieutenant Governor in Council The word ldquoplacerdquo would appear
to be a very broad term that could include a public park for example The area
designated by O Reg 23310 fell into this class of ldquopublic workrdquo
(b) Appointment and Powers of Guards and Peace Officers
Section 2 of the PWPA provides for the appointment of ldquoguardsrdquo the powers and duties
of peace officers and guards and the penalties for any breach of duty by these peace
officers and guards The PWPA provides that anyone who is a head of a board
commission or other body having charge over a public work can appoint a guard This is
very broad and arguably allows for the appointment of a private army by someone
ldquohaving charge ofrdquo a public work whoever that may be Pursuant to s 2(2) the ldquoguardsrdquo
have the same powers as a ldquopeace officerrdquo
Section 3 sets out the powers a guard or peace officer acquire pursuant to the PWPA
including that a guard may require people entering or approaching a public work to
identify themselves and to state the purpose for which they desire to enter the public
work In addition the guard or peace officer may search without warrant any person or
vehicle entering or attempting to enter a public work The guard or peace officer can
8
refuse to permit a person to enter a public work and can use as much force as necessary in
this endeavour
(c) Boundaries of Public Work
Section 4 provides that a statement under oath by an officer or employee of the person or
entity operating or having control of a public work regarding the boundaries of the public
work serves as conclusive evidence with respect to the boundaries
(d) Offence Power of Arrest
Section 5 provides that any person who neglects or refuses to comply with a request or
direction made by a guard or peace officer is guilty of an offence In addition a person
who enters a public work or an approach to a public work without lawful authority is
guilty of an offence A person found guilty of an offence is liable to a fine of not more
than $500 andor imprisonment of not more than two months A guard or peace officer
has the power to arrest without warrant any person who refuses to comply with a request
or direction of a guard or peace officer and who enters or attempts to enter a public work
without lawful authority
(e) Regulations
Section 6(b) provides that the Lieutenant Governor in Council may define the areas that
constitute approaches to public works while s 6(c) permits regulations to be made
regarding any matter necessary to carry out the intent and purpose of the PWPA
D Events Leading to Passage of O Reg 23310
There was no apparent reference to the possible use of the PWPA until fairly late in the
planning process for the security for the G20 Summit The Province of Ontario originally
9
attempted to obtain support for its security measures through reliance on a federal statute
the Foreign Missions and International Organizations Act (ldquoFMIOArdquo) which provides
that the RCMP can take ldquoappropriate measuresrdquo to ensure the proper functioning of an
intergovernmental conference ldquoin a manner that is reasonable in the circumstancesrdquo8
On May 7 2010 John Burke Deputy Minister of Community Safety and Correctional
Services of Ontario wrote to William Baker Deputy Minister of Public Safety Canada9
stating that security would be enhanced by the existence of an agreement pursuant to s
101(4) of the FMIOA which provides that the Federal Minister of Public Safety may
enter into arrangements with the government of a province concerning the responsibilities
of members of the RCMP and provincial municipal police forces with respect to
ensuring security for the proper functioning of a conference
On June 11 2010 the Provincial Deputy Minister received a reply10 from the Federal
Deputy Minister indicating that such an agreement would not be required for the
Summits since ldquothe current suite of powers and authorities that peace officers possess at
common law or by virtue of any other federal or provincial Act or regulation were
sufficient for the G8 and G20 Summitsrdquo
The Federal Deputy Minister was clear that in his view the police had sufficient authority
at common law and in statute to secure these conferences Similarly the OPP were of the
view that it was not necessary for the police forces to have any additional police powers
8 SC 1991 c 41 s 101(2) Attached as Appendix 5 is a copy of selected sections of the FMIOA 9 Attached as Appendix 6 is a copy of the May 7 2010 letter10 Attached as Appendix 7 is a copy of the letter received on June 11 2010
10
other than those already conferred by virtue of common law and statute (excluding the
PWPA) in order to secure the interdiction zones for the Summits
On May 12 2010 Chief William Blair of the TPS wrote to the Honourable Rick
Bartolucci Minister of Community Safety and Correctional Services11 stating that a
ldquocornerstonerdquo of the TPS security plan for the G20 Summit would be the establishment of
a security perimeter in an area around the Metro Toronto Convention Centre The
purpose of this security perimeter as explained in the letter was to ldquoensure the safety and
security of those attending the Summit the Summit site itself and people and property
within the area close to the Summit siterdquo Chief Blair indicated that the TPS would rely
upon the authority granted to it pursuant to the common law and if certain conditions are
met the FMIOA12 to establish and control the security perimeter However he believed
that the provisions of the PWPA ldquowould also offer legal support for the extraordinary
security measuresrdquo he believed would be necessary Chief Blair therefore requested ldquothe
Lieutenant Governor in Council to designate the area of or highways within the intended
security perimeter as a public work for the period from June 21 2010 through the end of
the Summit on June 27 2010rdquo A detailed description of the area requested to be
designated as a public work was provided to Minister Bartolucci as well as an aerial
photograph of the area
I am not aware that any organization publicly questioned the inherent police power to
erect fences defining the interdiction zone The Canadian Civil Liberties Association
11 See Appendix 312 This probably is in reference to s 101(4) of the FMIOA which provides the authority for the Minister of Public Safety and Emergency Preparedness to enter into arrangements with the government of a province concerning the responsibilities of members of the RCMP and members of the provincial and municipal police forces with respect to ensuring the security for the proper functioning of an intergovernmental conference
11
(ldquoCCLArdquo) published a document entitled ldquoProtecting civil liberties and human rights at
the G20 statement of concernsrdquo on May 21 201013 In this document the CCLA
expressed concern with the size of the security perimeter ldquoParticularly where there is a
primary fence to ensure safety around conference venues and delegate hotels any further
restrictions on mobility or protest must be fully and carefully justifiedrdquo14 However the
CCLA supported ldquothe overall goal of ensuring that the G20 is conducted in a manner that
is safe for delegates protesters and Toronto residents in generalrdquo15 and noted the
RCMPrsquos authority under the FMIOA There was no doubt expressed by the CCLA
concerning the power of police to erect security fences
By letter dated June 15 201016 Minister Bartolucci wrote to Chief Blair acknowledging
the request and stating in part
I agree that there are various sources of legal authority to support the security perimeter I also recognize the desirability of having additional sources of legal authority to ensure clarity regarding the ability of the Toronto Police Service to take the steps that it will be taking Accordingly I am pleased to inform you that a regulation has been made under the PWPA in response to your request
The Minister informed Chief Blair that O Reg 23310 had been filed with the Registrar
of Regulations and would come into force on June 21 2010 and would be revoked as of
June 28 2010 The area requested by Chief Blair to be designated as a ldquopublic workrdquo
was so designated in O Reg 23310
13 Canadian Civil Liberties Association Protecting civil liberties and human rights at the G20 statement of concerns May 21 2010 online Canadian Civil Liberties Association lthttpcclaorgwordpresswp-contentuploads201005G20-CCLA-Statement-of-Concernspdfgt14 Ibid p 415 Ibid p 316 Attached as Appendix 8 is a copy of the June 15 2010 letter
12
Four days earlier on June 11 2010 Mike McDonell the Assistant Commissioner of the
RCMP sent a letter to Chief Blair17 containing a thorough review of the statutory sources
of the RCMPrsquos duties and powers to secure intergovernmental conferences Assistant
Commissioner McDonell outlined the police authority to fully secure the G8 and G20
Summits
More specifically in relation to the Summits the RCMP will be taking measures to fulfill duties related to the protection of Internationally Protected Persons (IPPrsquos) that befall police in general and the RCMP in specific The official visit of the head of state or high ranking dignitary of a foreign country is an event that frequently engenders a real or apprehended threat to the preservation of peace which demands the adoption of proper and reasonable security measures in and by the host country
Furthermore Canada is a signatory of the United Nations Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons Including Diplomatic Agents In that regard Canada has specifically adopted laws requiring peace officers to protect IPPs as defined in section 2 of the Criminal Code in accordance with its international obligationshellip
Legal authorities also permit the RCMP to collaborate with other police forces such as the OPP in the fulfillment of its duties including in relation to securing the perimeter Such collaboration is essential in light of concurrent mandates of policing partners particularly in relation to the legal duties to preserve the peace and protect life and property
E O Reg 23310
On June 2 2010 Cabinetrsquos Legislation and Regulations Committee passed O Reg
23310 It was signed by the Lieutenant Governor on June 3 2010 and published on June
16 2010 on e-Laws a website maintained by the Government of Ontario not frequently
accessed by the public This website provides access to official copies of Ontariorsquos
statutes and regulations O Reg 23310 came into force on June 21 2010 and was
17 Attached as Appendix 9 is a copy of the June 11 2010 letter
13
revoked on June 28 2010 It was not published in The Ontario Gazette18 until July 3
2010 after it had already been revoked Section 23(2) of Ontariorsquos Legislation Act
200619 provides that a regulation is not effective against a person before the earliest of
when the person has actual notice of it the last instant on the day on which it is published
on the e-Laws website or the last instant of the day on which it is published in the print
version of The Ontario Gazette As a result though the technical requirements for
providing notice of O Reg 23310 were met I have concerns whether adequate notice
was given to the public especially in light of the fact that the regulation was not
published in The Ontario Gazette until it had already been revoked
The regulation set out the area where the security fence was to be erected and designated
that area as a ldquopublic workrdquo which then called into play all the powers provided by the
PWPA
ONTARIO REGULATION 23310
made under the
PUBLIC WORKS PROTECTION ACT
Made June 2 2010Filed June 14 2010
Published on e-Laws June 16 2010Printed in The Ontario Gazette July 3 2010
DESIGNATION OF PUBLIC WORKS
Designation 1 The following are designated as public works for the purposes of the Act 1 Everything described in clause (a) of the definition of ldquopublic workrdquo in section
1 of the Act that is located in the area described in Schedule 1 including without limitation and for greater certainty every sidewalk in that area
2 The places described in paragraphs 1 2 and 3 of Schedule 2
18 The Ontario Gazette contains Ontariorsquos legal notices and regulations19 SO 2006 c 21 Sched F
14
Revocation 2 This Regulation is revoked on June 28 2010
Commencement 3 This Regulation comes into force on the later of June 21 2010 and the day
it is filed SCHEDULE 1
AREA REFERRED TO IN PARAGRAPH 1 OF SECTION 1
The area in the City of Toronto lying within a line drawn as follows
Beginning at the curb at the southeast corner of Blue Jays Way and Front Street West then north to the centre of Front Street West then east along the centre of Front Street West to the east curb of Windsor Street then north along the east curb of Windsor Street to the centre of Wellington Street then east along the centre of Wellington Street to the centre of Bay Street then south along the centre of Bay Street to a point directly opposite the north wall of Union Station then west along the exterior of the north wall of Union Station to the centre of York Street then south along the centre of York Street continuing east of the abutments under the railway overpass and continuing south along the centre of York Street to the centre of Bremner Boulevard then west along the centre of Bremner Boulevard to the east curb of Lower Simcoe Street then south along the east curb of Lower Simcoe Street to the north curb of Lake Shore Boulevard West then west along the north curb of Lake Shore Boulevard West to the south end of the walkway that is located immediately west of the John Street Pumping Station and runs between Lake Shore Boulevard West and the bus parking lot of the Rogers Centre then north along the west edge of that walkway to the bus parking lot of the Rogers Centre then west along the south edge of the bus parking lot of the Rogers Centre to the west edge of the driveway running between the parking lot and Bremner Boulevard then north along the west edge of that driveway to the north curb of Bremner Boulevard then west along the north curb of Bremner Boulevard to the east curb of Navy Wharf Court then north along the east curb of Navy Wharf Court to the southwest point of the building known as 73 Navy Wharf Court then east along the exterior of the south wall of that building then north along the exterior of the east wall of that building to the curb of Blue Jays Way then north along the east curb of Blue Jays Way to the curb at the southeast corner of Blue Jays Way and Front Street West
SCHEDULE 2DESIGNATED PLACES REFERRED TO IN PARAGRAPH 2 OF SECTION 1
1 The area within the area described in Schedule 1 that is within five metres of a line drawn as follows Beginning at the south end of the walkway that is located immediately west of the John Street Pumping Station and runs between Lake Shore Boulevard West and the bus parking lot of the Rogers Centre then north along the west edge of that walkway to the bus parking lot of the Rogers Centre then west along the south edge of the bus parking lot of the Rogers Centre to the west edge of the driveway running between the parking lot and Bremner
15
Boulevard then north along the west edge of that driveway and ending at Bremner Boulevard
2 The area within the area described in Schedule 1 that is within five metres of a line drawn as follows
Beginning at the southwest point of the building known as 73 Navy Wharf Court then east along the exterior of the south wall of that building then north along the exterior of the east wall of that building and ending at the curb of Blue Jays Way
3 The below-grade driveway located between Union Station and Front Street West and running between Bay Street and York Street in the City of Toronto
F Information Given to Public Regarding Security Protocol
Attempts were made to inform the public about the security measures that would be in
place leading up to and throughout the G20 The City of Toronto in consultation with
the ISU produced an information article20 and flyers21 No mention is made in the article
or flyers of the PWPA or O Reg 23310 and the powers given to the police The City of
Toronto also prepared an advertisement which appeared in local newspapers22 The
original version of the advertisement made no reference to the fact that people would be
subject to a search when attempting to access the security perimeter although reference
was made to the requirement to show identification and to have a valid purpose for
entering the restricted area A later version of the advertisement included additional text
advising that anyone requesting access to the security perimeter may be subject to a
search However just as with the article and flyers no specific mention was made of the
PWPA or O Reg 23310
20 A million copies of the newsletter Our Toronto which contained an article entitled ldquoWhat to expect during the G20 ndash June 26 amp 27 2010rdquo were delivered to homes in the City of Toronto21 Approximately 10000 flyers were sent to homes and businesses within the affected area The flyercontained general information about security and the anticipated effects on traffic22 The advertisement appeared in the Toronto Star Toronto Sun and Metroland community papers
16
In the days leading up to and throughout the G20 Summit there was apparently a
misunderstanding on the part of the police regarding a purported ldquofive-metre rulerdquo This
confusion likely emanated from the ldquofive-metresrdquo referenced in Schedule 2 of O Reg
23310 However the purpose of Schedule 2 was to designate as ldquopublic work(s)rdquo three
specific private property locations on which the security fence was to be erected that were
not ldquopublic worksrdquo The remainder of the fence was on public sidewalks and streets
which are ldquopublic worksrdquo To ensure that the fence was located on a ldquopublic workrdquo the
drafters designated the area within five metres of the security fence in these three
locations as a ldquopublic workrdquo23 Unfortunately the wording of Schedule 2 was very
cumbersome and the relationship between the area defined in Schedule 1 and the five-
metre reference in Schedule 2 was difficult to understand
Because of this confusion unfortunately the message was conveyed that the regulation
provided for a five-metres zone outside the entire security fence and that therefore the
PWPA applied to this entire area24 The media reported during the G20 summit that the
police had ldquosweepingrdquo powers pursuant to the PWPA within five-metres outside of the
exterior security fence25 O Reg 23310 did not provide the police such authority
23 Attached as Appendix 10 is a copy of a map showing the three specific areas designated in Schedule 2 of O Reg 2331024 Jennifer Yang ldquoJust being near the G20 security zone can get you arrestedrdquo Toronto Star (25 June 2010) online thestarcom lthttpwwwthestarcomnewsgtatorontog20summitarticle828498--just-being-near-the-g20-security-zone-can-get-you-arrestedgt25 David Rider et al ldquoDalton McGuinty Bill Blair defend quiet boost in arrest powersrdquo Toronto Star (26 June 2010) online thestarcom lthttpwwwthestarcomnewsgtatorontog20summitarticle828974--dalton-mcguinty-bill-blair-defend-quiet-boost-in-arrest-powersgt
17
SECTION 3 COMMENTARY
A Public Policy Considerations
There are some overarching public policy considerations which affect the issues I have
been asked to address in the Terms of Reference
As stated earlier the legislation was the product of emergency World War II concerns
related to the possibility of enemy sabotage of important infrastructures The legislative
debates in September of 1939 were particularly concerned with the provincersquos
hydroelectric facilities However notwithstanding these apparently specific concerns
when drafted the definition of ldquopublic workrdquo is extraordinarily broad and from a policy
standpoint raises questions of overbreadth especially given the ability to designate
almost anything a public work In a mere definition section s 1 of the legislation allows
the Lieutenant Governor in Council to designate ldquoany other building place or workrdquo as a
ldquopublic workrdquo However taken to its logical conclusion an entire city or more could be
designated as a ldquopublic workrdquo The definition of ldquopublic workrdquo includes ldquoany provincial
and any municipal public buildingrdquo but ldquopublic buildingrdquo is not further defined thereby
creating an element of uncertainty as to the specific provincial and municipal buildings
captured by this definition While perhaps extreme measures in times of war require
flexibility in all other circumstances legislation of this nature requires limitations and a
more specialized approach
The expression ldquoprivate armyrdquo was used in the Ontario legislative debate in 1939
Theoretically at least private armies could be created through the use of the ldquoguardrdquo
appointing authority by the many individuals who are authorized to appoint guards
pursuant to the PWPA This authority was apparently in response to the Federal
18
Governmentrsquos refusal to assume through the Defence Department the responsibility of
guarding utilities and industries essential to the war effort While such a result might not
have been contemplated in a parliamentary democracy it is clearly unwise to leave such
a possibility open
Section 3 of the PWPA provides in part that a guard or a peace officer
(a) may require any person entering or attempting to enter any public work or any approach thereto to furnish his or her name and addresshellipand to state the purpose for which he or she desires to enter the public work in writing or otherwise
The primary problem I see with this section is the vagueness of the term ldquoapproach
theretordquo An approach could begin at a considerable distance from the public work
Section 6(b) also provides for the making of regulations ldquodefining the areas that
constitute approaches to public works either generally or with regard to a particular
public workrdquo
In addition s 3(b) of the PWPA provides that a guard or peace officer ldquomay search
without warrant any person entering or attempting to enter a public workrdquo This section
does not permit any person to abandon any attempt to enter a public work in order to
avoid being subjected to a warrantless search Such conduct is adopted by persons who
decide not to enter a secured courthouse in order to avoid a warrantless search
Section 4 provides that for the purposes of the PWPA the statement under oath made by
persons engaged in the operation of a public work ldquoas to the boundaries of the public
work is conclusive evidence thereofrdquo Section 4 should be considered with s 5(1) which
provides that ldquoevery person found upon a public work or any approach thereto without
lawful authority the proof whereof lies on him or her is guilty of an offencehellip(emphasis
19
added)rdquo The provision in s 4 that ldquothe statement under oathhellipis conclusive evidence
thereofrdquo appears to remove from a courtrsquos consideration what could be a legitimate
dispute as to the boundaries of a public work or the approach thereto Furthermore the
apparent reversal of the onus of proof regarding lawful authority to be found in a public
work or an approach found in s 5 is also troublesome from a policy and legal point of
view
Accordingly if utilized to the extreme many government officials could appoint many
private armies to restrict access to many (in fact any) public places where the mere
statement under oath by the private guard of the boundaries of the areas under restricted
access is conclusive proof thereof Such potential for abuse is beyond troubling to say
the least
B Review of other Public Reports
As is evident from the foregoing discussion many issues arise regarding the operation of
the PWPA in todayrsquos context These considerations and others also formed the basis of
concerns raised in public reports which I was asked to review
1 Reports of the Canadian Civil Liberties Association
The CCLA preliminary G20 report26 dealt with most of the police related events that
occurred in Toronto during the G20 conference during the weekend of June 26th and 27th
2010 I will only make reference to a few portions of the report that deal with the Terms
of Reference
26 Canadian Civil Liberties Association A Breach of the Peace ndash A Preliminary Report of Observations During the 2010 G20 Summit June 29 2010 online Canadian Civil Liberties Association lthttpcclaorgwordpresswp-contentuploads201006CCLA-Report-A-Breach-of-the-Peace-Preliminary-report-updated-July-8pdfgt
20
The report of the CCLA called for the repeal or significant amendment to the PWPA ldquoto
meet basic constitutional standardsrdquo27 The CCLA ldquosuggests that the broad police powers
granted under the Act are inconsistent with current Charter requirementsrdquo28
I agree with the observation of the CCLA that the provisions of the PWPA led to a ldquolack
of clarity as to the scope of the search and seizure powersrdquo29 which created many
difficulties and conflicts that probably could have been avoided I would also certainly
agree with a conclusory comment in this preliminary report that ldquoit is the duty of police
officers to act with fairness and equanimity toward all citizens in accordance with the law
of the country The presumption of innocence and the protection against arbitrary arrests
and detention are at the core of a commitment to justicerdquo30
The CCLA in partnership with the National Union of Public Employees organized
public hearings for two days in Toronto and one day in Montreal in November of 2010
which they referred to as a Citizens Inquiry The Citizens Inquiry heard from 63 members
of the public who had witnessed policing incidents or had been detained Several lawyers
and academics also participated in the hearing and offered commentary on the events of
the G20 from a legal or policing perspective including issues related to the PWPA A
report of the hearings titled ldquoG20 Toronto Breach of the Peace Public Hearingsrdquo was
released on February 28 2011 which also referred to the PWPA31
27 Ibid p 2228 Ibid p 929 Ibid p 1230 Ibid p 2131 Canadian Civil Liberties Association and the National Union of Public and General Employees G20 Toronto Breach of the Peace Public Hearings February 2011 online Canadian Civil Liberties Association lthttpcclaorgwordpresswp-contentuploads201102Breach-of-the-Peace-Final-Reportpdfgt
21
2 The Ontario Ombudsman Report
The Ontario Ombudsman commenced an investigation after receiving complaints relating
to a variety of issues concerning the G20 The Marin Report recognized that ldquotypically
international summits attract protests and protests can turn violent and even deadlyrdquo32
The report therefore does not quarrel with the requirement that a high level of security is
required for such events
The report in my view accurately describes the PWPA as ldquounique in Canada in terms of
the breadth of its reach and the powers it confershellipno other Canadian statute defining
lsquopublic worksrsquo contains provisions similar to those found in Ontariorsquos Actrdquo33
32 Ontario Ombudsman report Investigation into The Ministry of Community Safety and Correctional Servicesrsquo Conduct in Relation to Ontario Regulation 23310 under the Public Works Protection Act ldquoCaught in the Actrdquo by Andreacute Marin (Toronto Ombudsman of Ontario December 2010) online Ombudsman of Ontario lthttpwwwombudsmanoncamedia157555g20final1-enpdfgt (ldquoMarin Reportrdquo) at para 733 Ibid at para 97
22
SECTION 4 POWERS OF THE POLICE
Pursuant to the Terms of Reference I have been asked to consider for future purposes
whether the powers given to peace officers and guards under the PWPA are necessary to
protect public works secure intergovernmental conferences or for any other purposes
To answer that question it is necessary to assess whether the current common law and
statutory regime provide the police with sufficient powers to perform these vital services
A Common Law Powers and Powers Pursuant to Police Services Acts
The police have extensive common law powers that can be used in protecting and
securing intergovernmental conferences and in protecting public works It is necessary to
examine those powers in order to assess whether and what if any additional powers are
needed such as those provided by the PWPA
Of particular assistance in this regard is R v Knowlton34 where the Supreme Court of
Canada considered whether the powers possessed by peace officers at common law and
statute in securing an area for the protection of a foreign dignitary were lawful The
Supreme Court of Canada held that in order for the exercise of peace officer powers to be
lawful the powers must satisfy the two step test set out in R v Waterfield35 First the
power must be in furtherance of a lawful duty Traditional common law peace officer
duties include the preservation of the peace and the prevention of crime These common
law police duties amongst others are now statutorily enshrined in s 42(1) of Ontariorsquos
Police Services Act (and other provincial police services acts)36 The second part of the
test requires an evaluation of whether the conduct of the peace officer was ldquojustifiedrdquo To
34 [1974] SCR 443 [ldquoKnowltonrdquo]35 See for example R v Dedman [1985] 2 SCR 236 RSO 1990 c P15
23
do so one applies the standard of what is reasonably necessary in light of the totality of
the circumstances In evaluating whether the conduct of the peace officer was justified it
is important to consider ldquothe duty being performed the extent to which some interference
with individual liberty is necessary in the performance of that duty the importance of the
performance of the duty to the public good the nature of the liberty being interfered with
and the nature and extent of the interferencerdquo37
In Knowlton police in Edmonton cordoned off an area as part of the security
arrangements for the visit of Premier Kosygin of the USSR Premier Kosygin had been
assaulted in Ottawa a few days prior to his visit to Edmonton Knowlton entered the
secured area questioning the power of the peace officer to prevent his entry He was
arrested without a warrant and charged with obstructing a peace officer in the execution
of his duties Knowlton argued that the peace officer did not have the power to prevent
his entry and was not acting in the execution of his duty
The Supreme Court of Canada emphasized the heightened importance of security when
there are visiting foreign dignitaries38
It is notorious and of common knowledge that the official visit of the head of state or high rank dignitary of a foreign country friendly as either may be is an event that frequently engenders a real or apprehended threat to the preservation of peace and that calls therefore for the adoption of proper and reasonable security measures in and by the host countryhellipThe restriction of the right of free access of the public to public streetshellipwas one of the steps--not an unusual one--which police authorities considered and adopted as necessary for the attainment of the purpose aforesaid In my opinion such conduct of the police was clearly falling within the general scope of the duties imposed upon them
37 R v Mann [2004] 3 SCR 59 at 7938 Supra note 34 at 447-448
24
In addressing the first part of the Waterfield test the Court referenced provisions of the
Alberta Police Act and the Criminal Code and concluded that the conduct of the peace
officers fell within the general scope of the duties imposed upon them for example
preservation of the peace and prevention of crime39
According to the principles which for the preservation of peace and prevention of crime underlie the provisions of s 30 amongst others of the Criminal Code these official authorities were not only entitled but in duty bound as peace officers to prevent a renewal of a like criminal assault on the person of Premier Kosygin during his official visit in Canada In this respect they had a specific and binding obligation to take proper and reasonable steps The restriction of the right of free access of the public to public streets at the strategic point mentioned above was one of the steps--not an unusual one--which police authorities considered and adopted as necessary for the attainment of the purpose aforesaid In my opinion such conduct of the police was clearly falling within the general scope of the duties imposed upon them
In analyzing the second step of the Waterfield test the Court concluded that there was no
evidence indicating the police officers resorted to an unjustifiable use of the powers
associated with the duties imposed on them
The Court in Knowlton recognized broad police powers to cordon off areas as part of the
security arrangements involving internationally protected persons In addition the Court
found that the warrantless arrest in that case was not an unjustifiable or unreasonable use
of powers associated with the police duties to preserve the peace order public safety and
to enforce the law and prevent crime Finally the Court found that peace officers were
duty bound ldquoto prevent a renewal of a like criminal assault on the person of Premier
Kosygin during his official visit in Canadardquo40 Furthermore it stated the closing of public
39 Ibid 40 Ibid at 447
25
streets ldquowas one of the steps -- not an unusual one -- which police authorities considered
and adopted as necessaryrdquo41
The Knowlton decision clearly acknowledged that the police had the duty and authority to
establish and enforce a secured area to protect a foreign dignitary In order to carry out
these duties the police may do what is reasonably necessary in light of the totality of the
circumstances
Though Knowlton was decided prior to the enactment of the Canadian Charter of Rights
and Freedoms (the ldquoCharterrdquo) this does not in my view affect the clear statement by the
Supreme Court of Canada regarding the duty of the police under the common law and the
Alberta Police Act to provide this security While the facts of Knowlton were quite
compelling in relation to the obvious need to provide adequate security for Premier
Kosygin the decision is equally important authority regarding the general responsibilities
of the police at common law and statute in relation to the preservation of the peace
B Other Statutory Powers
1 Criminal Code
Some specific powers are provided to peace officers pursuant to the Criminal Code42
Section 31 gives peace officers the power to arrest an individual for breach of the peace
Peace officers can arrest those committing the breach of the peace or those who on
reasonable grounds heshe believe are about to join in or renew the breach of the peace
Peace officers also have powers at their disposal under ss 63-69 of the Criminal Code to
deal with the offences of unlawful assembly and riots
41 Ibid at 447-448 42 RSC 1985 c C-46
26
2 Trespass to Property Act
The Ontario Trespass to Property Act43 is a potential source of police power to arrest
without warrant those who are unlawfully on certain premises or who were recently
unlawfully on the premises and refuse to give their name and address44 This statute
deals with illegal entry into both private and public property by creating the offence of
trespass for those who without the express permission of the occupier enter on to
premises or engage in an activity on the premises when it is prohibited by the statute45
Though this statute is primarily used by private property owners to keep unwanted people
off of their property it has also been invoked by the Speaker of the House46 and by the
City of Toronto47 It must be noted however that using the Trespass to Property Act in
relation to removing individuals from ldquopublicrdquo places may raise Charter issues48
3 Foreign Missions and International Organizations Act
The RCMP as peace officers have the general duty to preserve the peace and prevent
crime and offences as set out in s 18 of the Royal Canadian Mounted Police Act49
Additional duties found in s 17 of the Royal Canadian Mounted Police Regulations
198850 include the protection of ldquointernationally protected personsrdquo as defined in s 2 of
the Criminal Code Internationally protected persons include heads of state and their
43 RSO 1990 c T2144 Ibid ss 9(1) 1045 Ibid s 2(1)46R v Behrens [2004] OJ No 5135 (CJ) The Court held that the issue of the trespass notices fell under the Speakerrsquos parliamentary privilege and were not reviewable even on the basis of a Charter argument47R v Semple [2004] OJ No 2137 (CJ)48 In R v Semple the defendants were charged under the Ontario Trespass to Property Act for entering the grounds of Toronto City Hall after being banned from doing so In the end the Court held that the defendantsrsquo peaceful entry onto the grounds was an expression as per s 2(b) of the Charter Torontorsquos notice under the Act infringed on this freedom and in these circumstances it could not be justified under s 1 of the Charter 49 RSC 1985 c R-1050 SOR88-361
27
family members The RCMPrsquos duty to protect internationally protected persons is also
found in s 6(1) of the Security Offences Act51
In addition Canada is a signatory of the United Nations Convention on the Prevention
and Punishment of Crimes against Internationally Protected Persons including
Diplomatic Agents52 This Convention provides that the Government of Canada must
protect visiting heads of state or government foreign ministers representatives or
officials of a state or any official or other agent of an international organization of an
intergovernmental character and the family members that accompany him or her The
RCMP has the responsibility to carry out these security measures
Pursuant to s 101(1) of the FMIOA ldquoThe Royal Canadian Mounted Police has the
primary responsibility to ensure the security for the proper functioning of any
intergovernmental conference in which two or more states participate that is attended by
persons granted privileges and immunities under this Act and to which an order made or
continued under this Act appliesrdquo
The powers to carry out this mandate are found in s 101(2) of the FMIOA ldquothe Royal
Canadian Mounted Police may take appropriate measures including controlling limiting
or prohibiting access to any area to the extent and in a manner that is reasonable in the
circumstancesrdquo It is noteworthy that the FMIOA has legislated the same powers
provided to the police under common law and statute
In order to trigger the RCMP powers described in s 101 the Governor in Council on the
51 RSC 1985 c S-752 UNGA Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons including Diplomatic Agents 20 February 1977 UN Doc I-15410
28
recommendation of the Minister of Foreign Affairs and pursuant to s 5 of the FMIOA
made the G8 Summit Privileges and Immunities Order 201053 on December 10 2009
This order was repealed and a subsequent order54 was made on January 13 2010 A
similar order55 for the G20 Summit was made on March 11 201056
Therefore during the G20 the RCMP had the specific statutory power to limit or
prohibit access to any area and to any extent as long as the measures were appropriate
and done in a manner that was reasonable in the circumstances ldquoThe RCMP may secure
the perimeter of the security zone on land with fencing and restrict access to this zone
through the use of checkpoints and other measuresrdquo57
Though not invoked during the G20 s 101(4) of the FMIOA provides that arrangements
can be entered into with a province concerning the responsibilities of members of the
RCMP and members of the provincial and municipal police forces with respect to
ensuring the security for the proper functioning of an intergovernmental conference No
information was provided to me as to why such an arrangement was not entered into for
the G20
These intergovernmental security provisions of the FMIOA were enacted just prior to the
G8 being held in Kananaskis Alberta in 2002 In light of violent protests at international
events and the 911 terrorist attacks in the United States the Federal Government
53 SOR2009-33654 SOR2010-1355 SOR2010-6256 Supra note 17 ldquoUpon such an Order being made the RCMP in co-operation and collaboration with other police forces becomes impressed with the primary responsibility of ensuring not only the protection of the IPPs but also ensuring lsquosecurity for the proper functioningrsquo of the intergovernmental conference To that end the FMIOA provides that the lsquoappropriate measures including controlling limiting or prohibiting access to any area to the extent and in a manner that is reasonable in the circumstancesrsquo may be takenrdquo57 Ibid
29
considered it timely ldquoto clarify in statute the present common law authority for police to
provide security and protection for high profile international eventsrdquo58 At such events it
was intended that ldquothe RCMP is the lead to make sure that security is providedrdquo59
Given that it was clearly the intention of the Federal Government to have the RCMP as
the lead police force at these international events consideration should be given to
expand the use of the FMIOA to cover all large scale international events such as the
Olympics the Pan American Games and international trade fairs as these events are
routinely attended by heads of state and senior government officials Most recently
Vancouver held the 2010 Olympic and Paralympic Winter Games60 Though federal and
municipal legislation were passed to assist in securing the Games expansion and
application of the FMIOA would have been a better approach The RCMP as the national
police force ought to be in charge pursuant to their authority under the FMIOA
4 Emergency Legislation
Through my consultations with the parties listed in Appendix 2 I heard that while we are
not in a time of war as in 1939 when the PWPA was enacted we live in an age of
international and local terrorism threats Our democratic society must be vigilant in
58 Canada House of Commons Debates 37th Parl 1st Sess No 93 (5 October 2001) at 100059 Canada House of Commons Standing Committee on Public Safety and National Security 40th Parl 3rd
Sess Evidence (25 October 2010)60 In anticipation of this event the Governor General in Council on the recommendation of the Minister of Transport pursuant to the Aeronautics Act (RSC 1985 c A-2) and the Canadian Air Transport Security Authority Act (SC 2002 c 9 s 2) passed the Vancouver 2010 Aviation Security Regulations (SOR2009-298) The purpose of the regulations was to enhance aviation security during the Games The Regulation provided for extra security and extra authorized means to conduct screenings In addition the Vancouver City Council passed the very lengthy By-law No 9962 known as the ldquoVancouver 2010 Olympic and Paralympic Winter Games By-Lawrdquo Specific security measures to be employed at a city live site (described thoroughly in a Schedule to the By-Law) that were enabled by this By-Law included The installation and monitoring of airport style and other security measures including magnetometers and X-ray machines the installation and monitoring of closed circuit television cameras the searching of any person who wished to enter on to a city live site and any bag luggage or other container carried by such person and the prohibiting of access to or removal from a city live site any person who refused to submit to a search
30
maintaining a proper level of security while recognizing that democratic values and
security issues can conflict where public order is at issue It is important to highlight that
provincial legislation exists dealing with both terrorism threats and emergency situations
I have been informed that federal and provincial counter-terrorism plans exist that
address preventing and responding to acts of terrorism
The Police Services Act regulations mandate police forces to establish procedures
consistent with federal and provincial counter-terrorism plans61 and to have policies with
respect to counter-terrorism62 In addition the Emergency Management and Civil
Protection Act allows for orders to be made in situations specifically designated an
ldquoemergencyrdquo63 by the Lieutenant Governor in Council or the Premier that regulate or
prohibit travel and movement to from or within any specified area64 Therefore the
PWPA is not needed to deal with these emergency situations as specific more recent
emergency legislation is in place for that very purpose
C Gaps in Canadian Police Powers
The Ministry of Community Safety and Correctional Services provided me with an
interesting article published in 2010 entitled ldquoThe Gap in Canadian Police Powers
61 Adequacy and Effectiveness of Police Services O Reg 399 s 2862 Ibid s 2963 Section 1 of the Emergency Management and Civil Protection Act defines an ldquoemergencyrdquo as ldquoemergencyrdquo means a situation or an impending situation that constitutes a danger of major proportions that could result in serious harm to persons or substantial damage to property and that is caused by the forces of nature a disease or other health risk an accident or an act whether intentional or otherwise (ldquosituation drsquourgencerdquo)64 RSO 1990 c E9 s 702(4)
31
Canada needs lsquoPublic Order Policingrsquo Legislationrdquo and co-authored by Wesley Pue and
Robert Diab65
This article was prompted by the debate over the cost nature and extent of security to be
employed at the Vancouver 2010 Winter Olympics The authors criticized the fact that
policing authorities in Canada ldquolack specific statutory authorization to take measures
commonly thought necessary to their missionrdquo66 These measures included security
fences in public areas designated protest areas restricted access to public space police
surveillance and searches without cause
The authors recognize that such powers may be necessary but note that ldquono legislature
has ever expressly conferred such powers on policing authorities outside the context of
international intergovernmental conferences Nor does the common law accord such
powers to state officials on its ownrdquo67 I respectfully disagree with this latter statement
It is my view the police have powers pursuant to the common law and statute as I have
discussed in the preceding section
The authors referred to R v Knowlton68 which I have previously discussed While the
authors give Knowlton a very narrow interpretation stating that ldquoits binding principle is a
good deal narrower than the words taken out of context might suggestrdquo69 I however am
of the view that the decision supports the proposition that police have a broad range of
65 Wesley Pue and Robert Diab ldquoThe Gap In Canadian Police Powers Canada Needs lsquoPublic Order Policingrsquo Legislationrdquo (2010) 28 Windsor Rev Legal Soc Issues 87 Wesley Pue is a professor of legal history at the University of British Columbia and Robert Diab is a PhD candidate at the UBC Faculty of Law66 Ibid p 8867 Ibid68 Supra note 3469 Supra note 65 p 92
32
responsibilities with deep historical roots in the common law and codified in statute a
position shared by the Federal Government when it introduced amendments to the
FMIOA The actions of the police in Knowlton were necessarily incidental to their
common law police duties and powers
The authors conclude that this ldquoauthority of police to create zones of exclusion either as
an incident of the general and ancient duties of constableshelliphas never been established in
the courtsrdquo70 I am of the view however that the role of the police in establishing
security zones relating to a crime a serious accident or other emergency is a routine and
well-accepted use of police powers pursuant to their common law and statutory duties I
am not suggesting that this common law authority permits the police to establish security
zones ldquofor the proper functioning of any intergovernmental conference in which two or
more states participaterdquo71 larger than necessary to fulfill their purpose The FMIOA as
amended in 2002 provides the RCMP with ldquoprimary responsibility to ensure the security
for the proper functioning of the intergovernmental conferencerdquo72 It is interesting
however that when the Federal Government was enacting this specific authority the
legislative debates indicated that the government was merely clarifying ldquoin statute the
present common law authority for police to provide security and protection for high
profile international eventsrdquo73
Security perimeters are routinely erected by police in the context of the commission of a
crime motor vehicle and other accidents as well as the Santa Claus parade and other
70 Ibid p 9671 Supra note 8 s 101(1)72 Ibid73 Supra note 58
33
parades It would in my view be quite impractical and unnecessary to legislate an
extensive code of police powers given their common law and statutory responsibilities to
generally maintain public order It is not advisable in my opinion to be prescriptive in
any way regarding what actions the police can take since they must assess what the
situation warrants while at the same time considering individual rights and freedoms
The details of any police response to an emergency must be tailored to the exigencies
related to the situation
The police clearly have common law and statutory authority to conduct warrantless
searches in specific situations (ldquoin exigent circumstancesrdquo)74 However when
warrantless searches must be carried out on a regular routine basis the police are acting
more like full time security guards and there should be specific statutory authority
provided to give such powers
I certainly accept the general proposition the authors assert that the mobility rights of
citizens should not be unreasonably or unfairly dealt with However one only need be
aware of the massive amount of construction taking place on the streets of Toronto as this
Report is being written to appreciate that it is not always reasonable to expect that ldquothe
rights of businesses homeowners and ordinary citizens to go about their routine
activities without interruptionrdquo75 will go unhindered While generally desirable it cannot
be legally guaranteed At the same time the authors do concede that ldquoimportant as they
74 Supra note 42 s 4871175 Supra note 65 p 89
34
are the rights of assembly movement and protest are not unqualified They can ndash and
should ndash be balanced against other important public needsrdquo76
In my view public policing at times requires innovation as it often benefits from
creative problem solving If police abuse their common law powers related to ldquopublic
order policingrdquo they are accountable to a multiplicity of authorities and the rule of law
most particularly the Charter The legal rights outlined in the Charter such as ldquothe
principles of fundamental justicerdquo77 security ldquoagainst unreasonable search and seizurerdquo78
and ldquothe right not to be arbitrarily detained or imprisonedrdquo79 are described very
generally However they were chosen deliberately as it was recognized that in each case
there is an inherent tension between imposing security measures and fundamental rights
and freedoms Determining which is paramount will be based on the facts of each case
76 Ibid p 9177 Canadian Charter of Rights and Freedoms s 7 Part I of the Constitution Act 1982 being Schedule B to the Canada Act 1982 (UK) 1982 c 1178 Ibid s 879 Ibid s 9
35
SECTION 5 LEGAL ANALYSIS OF THE PUBLIC WORKS PROTECTION ACT
A Legal Analysis of the Legislation
Many stakeholders have questioned the constitutional validity of the PWPA and O Reg
23310 The Ontario Ombudsman seriously questioned whether O Reg 23310 could
pass ldquoconstitutional musterrdquo80 The CCLA suggested that the broad police powers
granted under the PWPA were inconsistent with the Charter81
To the same effect were comments made by Premier Dalton McGuinty who described
the PWPA as ldquoan archaic law that was used to undermine Torontoniansrsquo civil rights
during the G20rdquo82 He elaborated83
The issue is whether itrsquos appropriate given our present-day values and given an old law which I am confident doesnrsquot strike the balance that you and I would want today in terms of public safety and individual freedom of expressionhellipWhen you start talking about civil rights individual freedoms yoursquore talking about those things that in fact define us as a free and democratic societyhellipItrsquos something that is real and meaningful and important to all of us
The Terms of Reference for this Review do not require that I conduct a constitutional
analysis of the PWPA I have however been asked to consider areas for reform and if
appropriate make specific recommendations for amendment or repeal This does require
that I therefore consider whether the legislation may be vulnerable to constitutional
challenge
Section 2(b) of the Charter guarantees everyone the fundamental freedom of expression
The definition of ldquoexpressionrdquo has been interpreted broadly ldquoActivity is expressive if it
80 Supra note 32 at para 23381 Supra note 26 p 982 Robert Benzie and Rob Ferguson ldquoMcGuinty shifts focus to fixing G20 lawrdquo Toronto Star (10 December 2010) online thestarcom lthttpwwwthestarcomnewscanadaarticle905436--mcguinty-shifts-focus-to-fixing-g20-lawgt 83 Ibid
36
attempts to convey meaningrdquo84 While freedom of expression is not absolute there is
very little that is not considered expression However expression that advocates violence
is not protected under s 2(b)85
The Supreme Court of Canada in Committee for the Commonwealth of Canada v
Canada held that s 2(b) ldquodoes not encompass the right to use any and all government
property for purposes of disseminating onersquos views on public matters but I have no doubt
that it does include the right to use for that purpose streets and parks which are dedicated
to the use of the public subject no doubt to reasonable regulation to ensure their
continued use for the purposes to which they are dedicatedrdquo86 It seems clear that
protesting in public streets is a form of expression protected by s 2(b) Protesting at an
intergovernmental conference is clearly expressive in nature
In challenges alleging that a statute contravenes s 2(b) of the Charter a court would
examine whether the purpose or effect of a law contravenes section 2(b)87 There is no
reason to suggest that the purpose of the PWPA was to infringe the freedom of
expression The purpose of the PWPA is to protect important public infrastructures A
court would then have to consider whether the effect of the PWPA may have resulted in
an infringement of freedom of expression
O Reg 23310 defined significant portions of downtown Toronto as a ldquopublic workrdquo
Section 3(c) of the PWPA allows peace officers to refuse entry into public works which
therefore limits the areas in which protesters could express themselves By creating the
84 Irwin Toy Ltd v Queacutebec (Attorney General) [1989] 1 SCR 927 at 96885 Ibid at 97086 [1991] 1 SCR 139 at 165-16687 Peter Hogg Constitutional Law of Canada loose-leaf (consulted on 7 January 2011) 5th ed (Toronto Thomson Reuters Canada Limited 2007) at 43-6
37
relatively large security perimeter designated by the regulation individuals may allege
they were not permitted to communicate directly with those they were protesting against
Furthermore individuals could not communicate in public places such as public streets
where the right to freedom of expression has previously been found to exist88
Commissioner Ted Hughes completed an interim report following a public hearing into
the complaints regarding events that took place with respect to the Asia Pacific Economic
Cooperation (APEC) Conference in Vancouver British Columbia in November 1997
Commissioner Hughes recommended that generous opportunity should be afforded to
peaceful protesters to be seen in their protest activities by guests at the event89
Section 7 of the Charter provides that ldquoEveryone has the right to life liberty and security
of the person and the right not to be deprived thereof except in accordance with the
principles of fundamental justicerdquo The PWPA raises issues regarding the liberty and
security of the person in providing for warrantless searches and stopping for
identification Furthermore vague laws offend two fundamental values of our legal
system90 Firstly individuals are not provided with sufficient guidance as to what
behaviour a law prohibits Secondly those in charge of enforcing the law are not
provided with clear guidance as to how to enforce it A vague law can lead to inconsistent
and arbitrary enforcement91
88 Supra note 86 89 Canada Commission for Public Complaints Against the RCMP APEC ndash Commission Interim Report (31 July 2001) at s 3111 (Commissioner Ted Hughes QC) online Commission for Public Complaints Against the RCMP lthttpwwwcpc-cppgccaprrrepphrapecapec-31-engaspxgt90 Supra note 87 at 47-60 91 ldquoA vague provision does not provide an adequate basis for legal debate that is for reaching a conclusion as to its meaning by reasoned analysis applying legal criteria It does not sufficiently delineate any area of risk and thus can provide neither fair notice to the citizen nor a limitation of enforcement discretion Such
38
As described by Professor Hogg92
The requirement that any limit on rights be prescribed by law reflects two values that are basic to constitutionalism or the rule of law First in order to preclude arbitrary and discriminatory action by government officials all official action in derogation of rights must be authorized by law Secondly citizens must have reasonable opportunity to know what is prohibited so that they can act accordingly Both these values are satisfied by a law that fulfils two requirements (1) the law must be adequately accessible to the public and (2) the law must be formulated with sufficient precision to enable people to regulate their conduct by it and to provide guidance to those who apply the law
As I stated earlier the phrase ldquoany approach theretordquo contained in s 3(a) of the PWPA is
potentially vague No criteria are provided to assist in determining when one is on ldquoany
approach theretordquo A phrase such as ldquoany approach theretordquo is subject to many potential
interpretations It is arguable that this language does not provide reasonable guidance for
individuals to obey the law and for the law to be consistently enforced
Section 8 of the Charter provides that ldquoEveryone has the right to be secure against
unreasonable search or seizurerdquo A warrantless search or seizure is only reasonable if the
search was authorized by law the law itself is reasonable and the manner in which the
search carried out was reasonable93 The fact that no reasonable or probable suspicions
are needed to carry out a search pursuant to s 3(b) of the PWPA raises some issues The
only prerequisite to such a search is that the person or vehicle being subjected to a search
is entering or attempting to enter a public work
a provision is not intelligible to use the terminology of previous decisions of this Court and therefore it fails to give sufficient indications that could fuel a legal debaterdquo (R v Nova Scotia Pharmaceutical Society [1992] 2 SCR 606 at 639-640) 92 Supra note 87 at 38-1293 R v Nolet [2010] SCJ No 24 at para 21
39
Whether the PWPArsquos s 3(b) authority to undertake warrantless searches is ldquoreasonablerdquo
depends on the reasonableness of the impact on the subject of the search ldquoThe
individuals reasonable expectation of privacy must of course be balanced against the
public interest in effective law enforcementrdquo94 It is harder to justify a warrantless search
where the reasonable expectation of privacy is higher For example interference with
bodily integrity will raise the standard of reasonableness Conversely in situations where
people expect to have a lower level of privacy the standard to prove reasonableness is
lower
One rightfully has some expectation of privacy when in public but it does not rise to the
level of privacy that one expects in onersquos home The expectation of privacy further
decreases when one attempts to enter a ldquopublic workrdquo especially in the context of a
secured barrier to an intergovernmental conference
Section 9 of the Charter provides that ldquoEveryone has the right not to be arbitrarily
detained or imprisonedrdquo95 Under s 3(a) of the PWPA a person entering or attempting to
enter or approach a public work must provide his or her name and address and state the
purpose for which he or she desires to enter the public work In order for a guard or
peace officer to carry out this duty the guard or peace officer may ldquostoprdquo the person from
further approaching or entering the public work and the person is not permitted under the
statute to decide not to enter By so doing it is arguable the guard or peace officer has
assumed control over the movement of the individual by a demand or direction The
94 R v Rao [1984] OJ No 3180 at para 79 (CA)95 ldquoDetention under s 9hellipof the Charter refers to a suspension of the individualrsquos liberty interest by a significant physical or psychological restraint Psychological detention is established either where the individual has a legal obligation to comply with the restrictive request or demand or a reasonable person would conclude by reason of the state conduct that he or she had no choice but to complyrdquo (R v Grant [2009] SCJ No 32 at para 44)
40
PWPA provides for a significant legal consequence if the demand or direction is not
followed since ldquoEvery person who neglects or refuses to comply with a request or
direction made under this Act by a guard or peace officer and every person found upon a
public work or any approach thereto without lawful authority the proof whereof lies on
him or her is guilty of an offence and on conviction is liable to a fine of not more than
$500 or to imprisonment for a term of not more than two months or to bothrdquo96
Pursuant to s 3(b) of the PWPA a guard or peace officer may search any person entering
or attempting to enter a public work These searches would necessitate the detention of a
person If a guard or peace officer performs such a search he or she has taken control
over the movement of the person by a demand or direction The same serious legal
consequence results from failing to obey this demand or direction as that which results
from failing to obey the demand or direction pursuant to s 3(a) of the PWPA As a
result ldquodetentionsrdquo could occur pursuant to both s 3(a) and s 3(b) of the PWPA
The question that would need to be addressed in any challenge to the PWPA is whether
the detentions permitted by the PWPA are arbitrary in nature The use of the term ldquoany
approach theretordquo is vague and imprecise A person could be deemed to be on ldquoany
approach theretordquo a great distance from the entrance of a public work and their detention
might very well be arbitrary In addition the fact that the guards and peace officers
determine the boundaries of the ldquoapproachesrdquo which cannot be contested seems
arbitrary as well as who they chose to search
96 It should be noted that not all communications with state authorities and police officers will amount to a detention The question is whether a person may reasonably believe that he or she is free to refuse to comply
41
Section 11(d) of the Charter provides that ldquoAny person charged with an offence has the
right to be presumed innocent until proven guilty according to law in a fair and public
hearing by an independent and impartial tribunalrdquo This requires that the Crown have the
burden of proving the guilt of an individual charged with an offence97 Provisions that
place the burden on the accused to disprove on the balance of probabilities an essential
element of an offence raises s 11(d) concerns because convictions would be possible
even if reasonable doubt existed98 The presumption of innocence is not only infringed
upon by a requirement that an accused disprove an essential element of an offence but
also any requirement on an accused to prove a fact on the balance of probabilities to
avoid conviction
Section 5(1) of the PWPA states that ldquoEvery person who neglects or refuses to comply
with a request or direction made under this Act by a guard or peace officer and every
person found upon a public work or any approach thereto without lawful authority the
proof whereof lies on him or her is guilty of an offence and on conviction is liable to a
fine of not more than $500 or to imprisonment for a term of not more than two months or
to bothrdquo For the offence of being found upon a public work or on any approach to a
public work without lawful authority the burden of proof has been ldquoshiftedrdquo from the
Crown to the accused to prove lawful authority
As the foregoing analysis reveals there are certainly many concerns that arise when one
places the PWPA under the lens of the Charter However the rights and freedoms
provided by the Charter are not absolute They are ldquosubject only to such reasonable
97 R v Oakes [1986] 1 SCR 10398 Ibid at 132
42
limits prescribed by law as can be demonstrably justified in a free and democratic
societyrdquo99
In assessing whether a law which infringes the Charter is saved by s 1 a court examines
both the object of the law and the measures taken to achieve that objective A lawrsquos
objective achieves the status of being sufficiently important to justify overriding a
Charter right only when it is consistent with the values of a free and democratic society
The objective must relate to pressing and substantial concerns and not concerns that are
trivial and must be focussed on ldquothe realization of collective goals of fundamental
importancerdquo100 The measures adopted must be ldquorationally connectedrdquo to the objective of
the law101 The measures ldquoshould impair lsquoas little as possiblersquo the right or freedom in
questionrdquo102 Furthermore there must be ldquoa proportionality between the effects of the
measures which are responsible for limiting the Charter right or freedom and the
objective which has been identified as of lsquosufficient importancersquordquo103
An issue that may affect whether the potential limitation on rights and freedoms of the
PWPA and O Reg 23310 were ldquoprescribed by lawrdquo is whether the regulation was
adequately accessible to the public The Ontario Ombudsman the CCLA and the Ontario
Bar Association (ldquoOBArdquo) all noted a lack of notice regarding O Reg 23310 and its
effects prior to and during the G20 While the text of the regulation was available prior
99 Charter s 1 The Superior Court of Quebec decision of Tremblay v Queacutebec (Attorney General) [2001] JQ No 1504 (CS) involved an interim injunction brought by an applicant who was denied entry into the secured perimeter during the 2001 Summit of the Americas in Queacutebec City The applicant sought an injunction to either eliminate the security barrier or to be given a pass to let him within the secured perimeter Even though the Court held that the erection of the security zone violated the applicantrsquos right to freedom of expression and peaceful assembly The court held that the infringement was ldquodemonstrably justified in a free and democratic societyrdquo100 Supra note 97 at 136101 Ibid at 139102 Ibid103 Ibid
43
to the G20 it was only available on a website not frequently accessed by the public
Since O Reg 23310 was not published in The Ontario Gazette until after it was
revoked it may be that the regulation was not adequately accessible to the public
Reverse onus offences have been found to be ldquorationally connectedrdquo when there is plainly
a rational connection between the proven fact and the fact to be presumed Reverse
onuses have also been upheld when the burden placed on the Crown would be virtually
impossible to meet (such as proving sanity)104 Even if the accused only has the burden
of disproving the fact that heshe did not have lawful authority to be in a public work or
on an approach thereto there may not be a rational connection between the proven fact
and the fact to be presumed
The history of threats and violence at previous intergovernmental conferences
demonstrated that the protection of G20 participants was a pressing and substantial
concern However given the broadness of the PWPA every exercise of it raises the
potential for Charter scrutiny
Recommendation
Given the public policy considerations I have raised regarding the PWPA and Charter
concerns that could arise I recommend that the PWPA be repealed after the Province has
considered potential policy and security gaps as a result of its repeal
B Other uses of the Public Works Protection Act
It appears from my consultations with stakeholder groups that if the PWPA is repealed
104 R v Chaulk [1990] 3 SCR 1303 at 1340
44
there are two areas which may require legislation to provide specific peace officer
powers These two areas are court security and the protection of nuclear power facilities
and other power generating infrastructures
1 Court Security
During my decade as Ontariorsquos Attorney General (1975 to 1985) there were three
murders in provincial courthouses as well as many threats to members of courthouse staff
and others As violent acts in courthouses can be anticipated courtroom security is often
required
Individuals are compelled to go to court for a variety of reasons such as appearing as an
accused as a witness or for jury duty To provide protection to those who work there or
are compelled to attend an adequate level of court security may require a search without
warrant of each and every individual who seeks to enter a courthouse It is not reasonable
to require prior judicial authorization for each search that takes place
The courts have considered the constitutionality of these provisions of the PWPA in
conjunction with section 137 of the Ontario Police Services Act in the context of court
security
Section 137 of the Ontario Police Services Act imposes a responsibility on municipal
police services boards to secure the premises where court proceedings are conducted and
includes
1 Ensuring the security of judges and of persons taking part in or attending proceedings
45
2 During the hours when judges and members of the public are normally present ensuring the security of the premises
3 Ensuring the secure custody of persons in custody who are on or about the premises including persons taken into custody at proceedings
4 Determining appropriate levels of security for the purposes of paragraphs 1 2 and 3
In R v Campanella105 Ms Campanella was attending the John Sopinka Courthouse in
Hamilton At the courthouse there were signs posted stating that those who entered
would be searched for weapons When Ms Campanellarsquos bag was searched marijuana
was found and she was charged with the possession of marijuana She argued that her s
8 Charter protection against unreasonable search and seizure had been violated and the
marijuana discovered during the search should therefore be excluded as evidence The
trial judge and the summary convictions appeal court rejected the section 8 Charter
argument and the appellant appealed to the Ontario Court of Appeal
The Ontario Court of Appeal agreed that ldquogiven the importance of the government
objective and the context in which these searches take place it is reasonable to authorize
warrantless searches of those entering courthouse facilitiesrdquo106 The Court stated ldquothe
only effective way to diminish the risk in a large courthouse is to subject everyone
without prior security clearance to some kind of inspection I can see no other feasible
means of achieving the aimrdquo107
The Court also pointed out the concern relating to the erosion of the benefits and
105 [2002] OJ No 5104 (SCJ) affrsquod [2005] OJ No 1345 (CA) [ldquoCampanellardquo]106 R v Campanella [2005] OJ No 1345 at para 17 (CA)107 Ibid at para 19
46
protections conferred by s 8 of the Charter108
I am sensitive to the concern that we should not erode the benefits and protections of s 8 by gradually sanctioning ever-greater intrusions into privacy because of unfounded fears We should not lightly accept that searches in public places are justified solely because people have become used to them and expect them However the record in this case establishes the justification for the kinds of searches carried out in this case
Ultimately the appeal was dismissed and s 137 of the Police Services Act and s 3(b) of
the PWPA) were held to comply with s 8 of the Charter109
In its consultations with me the OBA similarly stated that the existing nature of court
security is necessary and is generally ldquowell toleratedrdquo At the same time however it
submits that the security regime should not be ldquoshoehornedrdquo into the PWPA regime and
that it would be preferable to provide a legislative framework tailored for the specific
security requirements While the PWPA has been relied upon as support for the exercise
of powers by the police in providing court security the OBA submits that the PWPArsquos
ldquosingle security schemerdquo which declares something a ldquopublic workrdquo is an ldquoawkward
blunt instrument in a world where more specialized tools are necessaryrdquo When
warrantless searches are being done on a routine basis it is advisable to have specific
legislation providing peace officers with such power
Recommendation
Court security legislation is currently in place in many jurisdictions across Canada and
contain provisions that permit warrantless searches of persons wanting to access a
108 Ibid at para 25109 The Court in R v SS [2005] OJ No 5002 (SCJ) agreed with the findings and rationale of the Court of Appeal in Campanella
47
courthouse The constitutional validity of such legislation in Manitoba was upheld by that
provincersquos highest court110
Given the ongoing need for warrantless searches at courthouses the Province of Ontario
should consider specific court security legislation in Ontario to support the security
measures in our courthouses if the PWPA is to be repealed taking into consideration the
responsibilities of the municipal police services boards provided in s 137 of the Police
Services Act This legislation should only be passed after proper notice consultation and
legislative debate
2 Power Generating Infrastructures
It is clear from the submissions that I received from representatives of OPG and the
Canadian Nuclear Safety Commission (ldquoCNSCrdquo) that the PWPA currently plays a role in
providing security officers with the powers to secure power generating infrastructures
including the ability to carry firearms and the ability to stop and require identification
from those in proximity to those nuclear plants
Security is of the utmost importance in protecting a nuclear power plant Members of the
public do not need to access a nuclear or similar power facility unless employed at the
facility or carrying out work for the facility111
The security of areas within nuclear power plants is governed by the Nuclear Security
110 R v Lindsay [2004] MJ No 380 (CA) 111 Though the discussion focuses on nuclear power plants I have been informed that other power generating infrastructures use the PWPA to designate their security officers as guards As a result if the PWPA is repealed it will be necessary to broaden the consultations in relation to these other power generating infrastructures
48
Regulations112 Every nuclear power plant must be located within a ldquoprotected areardquo113
This protected area is the area within a fenced perimeter which is alarmed and
continually patrolled This area must be equipped with devices that employ two
independent systems to detect intrusion into the area114 The Nuclear Security
Regulations also provide detailed specifications for the barrier which must enclose the
protected area115 In addition licensees must ldquoidentify all vital areas and implement
physical protection measures ndash including access control and measures designed to delay
unauthorized accessrdquo116
The Nuclear Security Regulations also provide detailed provisions regarding entry into
protected areas No person can ldquoenter a protected area without physical proof of the
recorded authorization of the licenseerdquo117 Further to this on entry into a protected area
ldquothat personrsquos identity shall be verified by two separate personnel identity verification
systems one of which is an access card reader and the other of which is a biometric
personnel identity verification devicerdquo118 Licensees must also ldquoensure that vehicle
portals are used for the entry and exit of land vehicles into and from a protected areardquo119
Physical protection measures are also required to reduce the chance of a forced land
vehicle entry into a protected area120
The power to conduct searches upon entry to a protected area is also provided by the
112 SOR2000-209 113 Ibid s 8114 Ibid s 11(a)(i)115 Ibid s 9116 Ibid s 141117 Ibid s 17(1)118 Ibid s 171119 Ibid s 91(1)120 Ibid s 91(4)
49
Nuclear Security Regulations Signs must be posted that are visible to people about to
enter the protected area stating that they must allow a nuclear security officer (ldquoNSOrdquo) to
ldquosearch them and everything in their possession including any land vehicle for weapons
and explosive substancesrdquo121 In addition when leaving the protected area people must
allow NSOs to ldquosearch them and everything in their possession including any land
vehicle for Category I II or III nuclear materialrdquo122 People are not permitted to enter or
leave a protected area unless these searches are carried out123 The Nuclear Security
Regulations provide for the method of search including ldquoa hand-held scanner a walk-
through scanner or any similar devicerdquo124 In addition if an NSO determines it
necessary a frisk search can be carried out by a person of the same sex125
I have been informed that the area outside of but adjacent to the ldquoprotected areardquo is
referred to as the ldquocontrolled areardquo This area includes roadways and waterways within
the nuclear facilityrsquos property boundaries adjacent to or in close proximity to the nuclear
power plantrsquos protected area and may be generally accessible to the public
As a result of the September 11 2001 terrorist attacks the Nuclear Security Regulations
were amended to require that high security nuclear facilities maintain an on-site armed
Nuclear Response Force (ldquoNRFrdquo)126 The NRF is composed of specialized NSOs
Section 32 of the Nuclear Security Regulations requires the NRF to be capable of making
an effective intervention taking into account the threat
121 Ibid s 27(1)(a)122 Ibid s 27(1)(b)123 Ibid s 27(2)124 Ibid s 27(5)(a)125 Ibid s 27(5)(b)126 Ibid s 32
50
Members of the NRF are mandated by the Nuclear Security Regulations to be ldquotrained in
the use of firearms authorized to carry firearms in Canada and qualified to use themrdquo127
However to satisfy this requirement the NRF resorts to the PWPA since the federal
regulations do not authorize the NRF to carry firearms without a licence However
under s 2(1) of the PWPA NSOs are designated as ldquoguardsrdquo with the powers of a peace
officer most significantly to carry and use firearms without having to be licensed128
Such a designation also enables the OPG to acquire and dispose of firearms
In the consultations I had with the OPG and the CNSC they advised me that NSOs
receive training equivalent to Canadian police standards and that NRF officers receive
training equivalent to federal and provincial police tactical team requirements
Another aspect of the PWPA used to secure nuclear power plants relates to powers
exercised by NSOs in ldquocontrolled areasrdquo The federal regulations do not provide the
NSOs with any power to demand identification within this area However pursuant to
the PWPA as appointed ldquoguardsrdquo the NSOs have the power to demand identity
verification in the controlled area They also have the authority to arrest anyone who
obstructs NSOs in the performance of their duties under the PWPA
In addition to using the PWPA to secure the controlled areas I have been advised by the
OPG that NSOs use powers pursuant to the PWPA to secure areas within 100 metres of a
nuclear facilityrsquos property line immediately adjacent to the controlled area These powers
are exercised under the broad language of the PWPA regarding ldquoapproaches to public
127 Ibid s 1 (on-site nuclear response force definition)128 Section 11707 of the Criminal Code exempts peace officers from licensing requirements for possessing firearms and other prohibited and restricted weapons
51
worksrdquo This is an illustration of the problem with the vagueness of this language in the
legislation As these powers are exercised on public land they could be challenged as a
potential infringement on individual rights and freedoms However I have been advised
that there have been no such incidents to date The need to ensure the security of these
facilities must be taken into the balance
NSOs must be able to monitor and control access to the controlled areas and areas close
to a nuclear power plantrsquos property line This provides for a more secure perimeter
around these facilities They need authority to challenge individuals acting in a suspicious
manner or conducting surveillance of nuclear facilities The OPG has informed me that
areas outside a nuclear facilityrsquos property line immediately adjacent to the controlled
area are still close enough to take advantage of the short distance to conduct intelligence
using high-powered surveillance equipment These nuclear power plants are not located
on isolated islands and are therefore vulnerable Both the Pickering Nuclear Generating
Station and the Darlington Nuclear Generating Station operate within major urban areas
being 30 km and 60 km east of downtown Toronto respectively I am advised that
previous events such as ldquoThe Toronto 18rdquo129 have shown that those intent on targeting
vital infrastructure such as power generating facilities often use reconnaissance and
intelligence gathering as precursor tactics
Recommendation
If the PWPA is to be repealed it is imperative that those who secure our nuclear and
power generating facilities be given the requisite specific legislative powers to do so
129 See for example ldquoLast 2 Toronto 18 accused found guiltyrdquo CBC News (23 June 2010) online cbcca lthttpwwwcbccanewscanadatorontostory20100623toronto-18-verdicthtmlgt
52
The source for these powers should be set out in the federal Nuclear Security
Regulations However if this is not a desired option the Government of Ontario must
consider specific legislation setting out the specific powers required to properly secure
these facilities and the specific location in which these powers can be exercised Such
legislation should not be passed without proper notice consultation and legislative
debate
53
SECTION 6 CONCLUSION
The PWPA was enacted in 1939 to support the war effort At the time the protection of
Ontariorsquos hydroelectric facilities from sabotage was of particular concern Since then the
PWPA has been used to provide the legal foundation for the powers exercised by the
police in providing court security and even more recently by the OPG in securing
nuclear power facilities In June 2010 the PWPA was used to provide powers to secure
intergovernmental conferences The vagueness of the PWPA permits it to be used in
situations when it is arguably not necessary and potentially abusive In my view the
PWPA has been used for purposes beyond its original intent
The time for the PWPA seems to have passed If the Government of Ontario enacts as I
have suggested specific legislation to provide for courthouse security and power
generating infrastructure security it would appear that there is no longer a need for the
PWPA I am also mindful of the existence of counter-terrorism and emergencies
legislation to deal with these situations as they arise
ldquoIn determining the boundaries of police powers caution is required to ensure the proper
balance between preventing excessive intrusions on an individualrsquos liberty and privacy
and enabling the police to do what is reasonably necessary to perform their duties in
protecting the publicrdquo130 The overly broad and vague language of the PWPA does not
strike this required balance with individual rights and freedoms
The late Justice Jackson of the United States Supreme Court stated that every
emergency power once conferred ldquolies about like a loaded weapon ready for the hand of
130 R v Clayton [2007] 2 SCR 725 at 742
54
any authority that can bring forward a plausible claim of an urgent needrdquo131 The need to
protect the public must be balanced with the requirement to preserve fundamental rights
and freedoms
Yet at the same time ldquoCanadians are entitled to demand the best public order policing
possible from their governmentrdquo132 There is no question that we live in a different world
post 911 We live in difficult times with constant threats both domestically and from
abroad The police clearly need to be given adequate powers to carry out their duties
The police use their expertise on a daily basis to assess the powers they require In
instances when they take action that exceeds their powers their actions are examined by
various mandated bodies This process I believe results in the proper balance between
police powers and individual rights and freedoms Therefore any legislation that purports
to grant special police powers must be specific and direct and developed in consultation
with stakeholders and tested through thorough debate in our transparent democratic
system
131 Korematsu v United States 323 US 214 (1944)132 Supra note 26 p 8
55
The PWPA has undergone only minor amendments since 1939 Shortly after it was
enacted two Orders in Council were passed designating areas around the Canadian
General Electric Company Limited and The Canadian Car and Foundry Company as
ldquopublic worksrdquo In 1950 a provision regarding the recovery of certain fines was deleted
In 1960 the provision regarding the appointment of guards was moved from near the end
of the PWPA to closer to the beginning In 1972 the PWPA was amended to reassign
certain responsibilities from the Attorney General to the Solicitor General It was
amended again in 1989 to increase the fine for an offence under the PWPA from $100 to
$500 There have also been some other minor changes of wording since 1939
B Current Uses of the Public Works Protection Act
Although there is legislation in other provinces that defines ldquopublic worksrdquo for other
purposes there is no jurisdiction in Canada which has legislation similar in nature to the
PWPA
As the PWPA was enacted in 1939 as an emergency wartime statute it is perhaps not
surprising that it is relied upon today in only limited circumstances Prior to the G20 the
PWPA had only been relied upon to conduct searches at courthouses in the context of
providing courthouse security This use of the PWPA was upheld by the courts7 In
addition since September 2001 the PWPA has been used by Ontario Power Generation
(ldquoOPGrdquo) to empower its guards to secure its nuclear and non-nuclear power generating
facilities
7 See for example R v Campanella [2002] OJ No 5104 (SCJ) affrsquod [2005] OJ No 1345 (CA) and R v SS [2005] OJ No 5002 (SCJ)
4
C Outline of the Public Works Protection Act
Given the fact that the PWPA is a short statute I am reproducing it here in its entirety for
ease of reference
The Public Works Protection Act
Definitions 1 In this Act
ldquoguardrdquo means a guard appointed under this Act (ldquogardienrdquo)
ldquohighwayrdquo means a common or public highway or a part thereof and includes any street bridge and any other structure incidental thereto and any part thereof (ldquovoie publiquerdquo)
ldquopublic workrdquo includes
(a) any railway canal highway bridge power works including all property used for the generation transformation transmission distribution or supply of hydraulic or electrical power gas works water works public utility or other work owned operated or carried on by the Government of Ontario or by any board or commission thereof or by any municipal corporation public utility commission or by private enterprises
(b) any provincial and any municipal public building and (c) any other building place or work designated a public work by the Lieutenant
Governor in Council (ldquoouvrage publicrdquo) RSO 1990 c P55 s 1
Guards appointment 2(1)For the purpose of protecting a public work guards may be appointed by (a) the Solicitor General
(b) the Commissioner of the Ontario Provincial Police Force (c) any inspector of the Ontario Provincial Police Force
(d) the head or deputy head of the municipal council or the chief of police of the municipality in which the public work is located or the person acting in the place or stead of the head or deputy head
(e) the chair or other person who is the head of a board commission or other body owning or having charge of the public work or the person acting in the place or stead of the chair or other person
Powers of guard (2)Every person appointed as a guard under this section has for the purposes of this
Act the powers of a peace officer
5
Duties of guard (3)Subject to the regulations and to any special direction of the Solicitor General or
the Commissioner of the Ontario Provincial Police Force every guard shall obey all directions of the person appointing him or her any inspector of the Ontario Provincial Police Force the chief of police of the municipality in which is located the public work that he or she is protecting and the person who is in charge of the protecting of the public work
Breach of duty of guard (4)Every guard who (a) neglects or refuses to obey a direction that he or she is required to obey under
subsection (3) (b) fails in any manner to carry out his or her duties as guard
(c) leaves the location to which he or she is assigned as guard or ceases to act as guard without leave of any of the persons mentioned in subsection (3) or
(d) otherwise conducts himself or herself in a manner not consistent with his or her duties as guard
is guilty of an offence and on conviction is liable to a fine of not more than $500 or to imprisonment for a term of not more than two months or to both RSO 1990 c P55 s 2
Powers of guard or peace officer 3A guard or peace officer (a) may require any person entering or attempting to enter any public work or any
approach thereto to furnish his or her name and address to identify himself or herself and to state the purpose for which he or she desires to enter the public work in writing or otherwise
(b) may search without warrant any person entering or attempting to enter a public work or a vehicle in the charge or under the control of any such person or which has recently been or is suspected of having been in the charge or under the control of any such person or in which any such person is a passenger and
(c) may refuse permission to any person to enter a public work and use such force as is necessary to prevent any such person from so entering RSO 1990 c P55 s 3
Statement under oath to be conclusive evidence 4For the purposes of this Act the statement under oath of an officer or employee
of the government board commission municipal or other corporation or other person owning operating or having control of a public work as to the boundaries of the public work is conclusive evidence thereof RSO 1990 c P55 s 4
Refusal to obey guard etc 5(1)Every person who neglects or refuses to comply with a request or direction
made under this Act by a guard or peace officer and every person found upon a public
6
work or any approach thereto without lawful authority the proof whereof lies on him or her is guilty of an offence and on conviction is liable to a fine of not more than $500 or to imprisonment for a term of not more than two months or to both
Arrest (2)A guard or peace officer may arrest without warrant any person who neglects
or refuses to comply with a request or direction of a guard or peace officer or who is found upon or attempting to enter a public work without lawful authority RSO 1990 c P55 s 5
Regulations 6The Lieutenant Governor in Council may make regulations
(a) providing for the organization co-ordination supervision discipline and control of guards
(b) defining the areas that constitute approaches to public works either generally or with regard to a particular public work
(c) respecting any matter necessary or advisable to carry out effectively the intent and purpose of this Act RSO 1990 c P55 s 6
1 Discussion of Key Sections
(a) Definition of ldquoPublic Workrdquo
Section 1 defines ldquopublic workrdquo very broadly There are at least three classes of public
works The first class includes certain transportation infrastructure (ldquorailway canal
highway bridgerdquo) energy infrastructure (ldquopower works including all property used for
the generation transformation transmission distribution or supply of hydraulic or
electrical power gas worksrdquo) other public utilities (ldquowater works public utilityrdquo) and
other ldquoworksrdquo generally (ldquoor other workrdquo) This first class of public works may be
publicly or privately owned (ldquoowned operated or carried on by the Government of
Ontario or by any board or commission thereof or by any municipal corporation public
utility commission or by private enterprisesrdquo)
The second class of defined ldquopublic worksrdquo includes all provincial and municipal
buildings ldquoPublic buildingrdquo is not defined It would appear to clearly include buildings
7
such as the Legislative Assembly courthouses and city halls and likely includes
provincially or municipally owned buildings used for governmental purposes It would
also seem to include provincially or municipally owned buildings used for other
purposes such as libraries for example
The third class of ldquopublic worksrdquo includes any other building place or work designated
as a public work by the Lieutenant Governor in Council The word ldquoplacerdquo would appear
to be a very broad term that could include a public park for example The area
designated by O Reg 23310 fell into this class of ldquopublic workrdquo
(b) Appointment and Powers of Guards and Peace Officers
Section 2 of the PWPA provides for the appointment of ldquoguardsrdquo the powers and duties
of peace officers and guards and the penalties for any breach of duty by these peace
officers and guards The PWPA provides that anyone who is a head of a board
commission or other body having charge over a public work can appoint a guard This is
very broad and arguably allows for the appointment of a private army by someone
ldquohaving charge ofrdquo a public work whoever that may be Pursuant to s 2(2) the ldquoguardsrdquo
have the same powers as a ldquopeace officerrdquo
Section 3 sets out the powers a guard or peace officer acquire pursuant to the PWPA
including that a guard may require people entering or approaching a public work to
identify themselves and to state the purpose for which they desire to enter the public
work In addition the guard or peace officer may search without warrant any person or
vehicle entering or attempting to enter a public work The guard or peace officer can
8
refuse to permit a person to enter a public work and can use as much force as necessary in
this endeavour
(c) Boundaries of Public Work
Section 4 provides that a statement under oath by an officer or employee of the person or
entity operating or having control of a public work regarding the boundaries of the public
work serves as conclusive evidence with respect to the boundaries
(d) Offence Power of Arrest
Section 5 provides that any person who neglects or refuses to comply with a request or
direction made by a guard or peace officer is guilty of an offence In addition a person
who enters a public work or an approach to a public work without lawful authority is
guilty of an offence A person found guilty of an offence is liable to a fine of not more
than $500 andor imprisonment of not more than two months A guard or peace officer
has the power to arrest without warrant any person who refuses to comply with a request
or direction of a guard or peace officer and who enters or attempts to enter a public work
without lawful authority
(e) Regulations
Section 6(b) provides that the Lieutenant Governor in Council may define the areas that
constitute approaches to public works while s 6(c) permits regulations to be made
regarding any matter necessary to carry out the intent and purpose of the PWPA
D Events Leading to Passage of O Reg 23310
There was no apparent reference to the possible use of the PWPA until fairly late in the
planning process for the security for the G20 Summit The Province of Ontario originally
9
attempted to obtain support for its security measures through reliance on a federal statute
the Foreign Missions and International Organizations Act (ldquoFMIOArdquo) which provides
that the RCMP can take ldquoappropriate measuresrdquo to ensure the proper functioning of an
intergovernmental conference ldquoin a manner that is reasonable in the circumstancesrdquo8
On May 7 2010 John Burke Deputy Minister of Community Safety and Correctional
Services of Ontario wrote to William Baker Deputy Minister of Public Safety Canada9
stating that security would be enhanced by the existence of an agreement pursuant to s
101(4) of the FMIOA which provides that the Federal Minister of Public Safety may
enter into arrangements with the government of a province concerning the responsibilities
of members of the RCMP and provincial municipal police forces with respect to
ensuring security for the proper functioning of a conference
On June 11 2010 the Provincial Deputy Minister received a reply10 from the Federal
Deputy Minister indicating that such an agreement would not be required for the
Summits since ldquothe current suite of powers and authorities that peace officers possess at
common law or by virtue of any other federal or provincial Act or regulation were
sufficient for the G8 and G20 Summitsrdquo
The Federal Deputy Minister was clear that in his view the police had sufficient authority
at common law and in statute to secure these conferences Similarly the OPP were of the
view that it was not necessary for the police forces to have any additional police powers
8 SC 1991 c 41 s 101(2) Attached as Appendix 5 is a copy of selected sections of the FMIOA 9 Attached as Appendix 6 is a copy of the May 7 2010 letter10 Attached as Appendix 7 is a copy of the letter received on June 11 2010
10
other than those already conferred by virtue of common law and statute (excluding the
PWPA) in order to secure the interdiction zones for the Summits
On May 12 2010 Chief William Blair of the TPS wrote to the Honourable Rick
Bartolucci Minister of Community Safety and Correctional Services11 stating that a
ldquocornerstonerdquo of the TPS security plan for the G20 Summit would be the establishment of
a security perimeter in an area around the Metro Toronto Convention Centre The
purpose of this security perimeter as explained in the letter was to ldquoensure the safety and
security of those attending the Summit the Summit site itself and people and property
within the area close to the Summit siterdquo Chief Blair indicated that the TPS would rely
upon the authority granted to it pursuant to the common law and if certain conditions are
met the FMIOA12 to establish and control the security perimeter However he believed
that the provisions of the PWPA ldquowould also offer legal support for the extraordinary
security measuresrdquo he believed would be necessary Chief Blair therefore requested ldquothe
Lieutenant Governor in Council to designate the area of or highways within the intended
security perimeter as a public work for the period from June 21 2010 through the end of
the Summit on June 27 2010rdquo A detailed description of the area requested to be
designated as a public work was provided to Minister Bartolucci as well as an aerial
photograph of the area
I am not aware that any organization publicly questioned the inherent police power to
erect fences defining the interdiction zone The Canadian Civil Liberties Association
11 See Appendix 312 This probably is in reference to s 101(4) of the FMIOA which provides the authority for the Minister of Public Safety and Emergency Preparedness to enter into arrangements with the government of a province concerning the responsibilities of members of the RCMP and members of the provincial and municipal police forces with respect to ensuring the security for the proper functioning of an intergovernmental conference
11
(ldquoCCLArdquo) published a document entitled ldquoProtecting civil liberties and human rights at
the G20 statement of concernsrdquo on May 21 201013 In this document the CCLA
expressed concern with the size of the security perimeter ldquoParticularly where there is a
primary fence to ensure safety around conference venues and delegate hotels any further
restrictions on mobility or protest must be fully and carefully justifiedrdquo14 However the
CCLA supported ldquothe overall goal of ensuring that the G20 is conducted in a manner that
is safe for delegates protesters and Toronto residents in generalrdquo15 and noted the
RCMPrsquos authority under the FMIOA There was no doubt expressed by the CCLA
concerning the power of police to erect security fences
By letter dated June 15 201016 Minister Bartolucci wrote to Chief Blair acknowledging
the request and stating in part
I agree that there are various sources of legal authority to support the security perimeter I also recognize the desirability of having additional sources of legal authority to ensure clarity regarding the ability of the Toronto Police Service to take the steps that it will be taking Accordingly I am pleased to inform you that a regulation has been made under the PWPA in response to your request
The Minister informed Chief Blair that O Reg 23310 had been filed with the Registrar
of Regulations and would come into force on June 21 2010 and would be revoked as of
June 28 2010 The area requested by Chief Blair to be designated as a ldquopublic workrdquo
was so designated in O Reg 23310
13 Canadian Civil Liberties Association Protecting civil liberties and human rights at the G20 statement of concerns May 21 2010 online Canadian Civil Liberties Association lthttpcclaorgwordpresswp-contentuploads201005G20-CCLA-Statement-of-Concernspdfgt14 Ibid p 415 Ibid p 316 Attached as Appendix 8 is a copy of the June 15 2010 letter
12
Four days earlier on June 11 2010 Mike McDonell the Assistant Commissioner of the
RCMP sent a letter to Chief Blair17 containing a thorough review of the statutory sources
of the RCMPrsquos duties and powers to secure intergovernmental conferences Assistant
Commissioner McDonell outlined the police authority to fully secure the G8 and G20
Summits
More specifically in relation to the Summits the RCMP will be taking measures to fulfill duties related to the protection of Internationally Protected Persons (IPPrsquos) that befall police in general and the RCMP in specific The official visit of the head of state or high ranking dignitary of a foreign country is an event that frequently engenders a real or apprehended threat to the preservation of peace which demands the adoption of proper and reasonable security measures in and by the host country
Furthermore Canada is a signatory of the United Nations Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons Including Diplomatic Agents In that regard Canada has specifically adopted laws requiring peace officers to protect IPPs as defined in section 2 of the Criminal Code in accordance with its international obligationshellip
Legal authorities also permit the RCMP to collaborate with other police forces such as the OPP in the fulfillment of its duties including in relation to securing the perimeter Such collaboration is essential in light of concurrent mandates of policing partners particularly in relation to the legal duties to preserve the peace and protect life and property
E O Reg 23310
On June 2 2010 Cabinetrsquos Legislation and Regulations Committee passed O Reg
23310 It was signed by the Lieutenant Governor on June 3 2010 and published on June
16 2010 on e-Laws a website maintained by the Government of Ontario not frequently
accessed by the public This website provides access to official copies of Ontariorsquos
statutes and regulations O Reg 23310 came into force on June 21 2010 and was
17 Attached as Appendix 9 is a copy of the June 11 2010 letter
13
revoked on June 28 2010 It was not published in The Ontario Gazette18 until July 3
2010 after it had already been revoked Section 23(2) of Ontariorsquos Legislation Act
200619 provides that a regulation is not effective against a person before the earliest of
when the person has actual notice of it the last instant on the day on which it is published
on the e-Laws website or the last instant of the day on which it is published in the print
version of The Ontario Gazette As a result though the technical requirements for
providing notice of O Reg 23310 were met I have concerns whether adequate notice
was given to the public especially in light of the fact that the regulation was not
published in The Ontario Gazette until it had already been revoked
The regulation set out the area where the security fence was to be erected and designated
that area as a ldquopublic workrdquo which then called into play all the powers provided by the
PWPA
ONTARIO REGULATION 23310
made under the
PUBLIC WORKS PROTECTION ACT
Made June 2 2010Filed June 14 2010
Published on e-Laws June 16 2010Printed in The Ontario Gazette July 3 2010
DESIGNATION OF PUBLIC WORKS
Designation 1 The following are designated as public works for the purposes of the Act 1 Everything described in clause (a) of the definition of ldquopublic workrdquo in section
1 of the Act that is located in the area described in Schedule 1 including without limitation and for greater certainty every sidewalk in that area
2 The places described in paragraphs 1 2 and 3 of Schedule 2
18 The Ontario Gazette contains Ontariorsquos legal notices and regulations19 SO 2006 c 21 Sched F
14
Revocation 2 This Regulation is revoked on June 28 2010
Commencement 3 This Regulation comes into force on the later of June 21 2010 and the day
it is filed SCHEDULE 1
AREA REFERRED TO IN PARAGRAPH 1 OF SECTION 1
The area in the City of Toronto lying within a line drawn as follows
Beginning at the curb at the southeast corner of Blue Jays Way and Front Street West then north to the centre of Front Street West then east along the centre of Front Street West to the east curb of Windsor Street then north along the east curb of Windsor Street to the centre of Wellington Street then east along the centre of Wellington Street to the centre of Bay Street then south along the centre of Bay Street to a point directly opposite the north wall of Union Station then west along the exterior of the north wall of Union Station to the centre of York Street then south along the centre of York Street continuing east of the abutments under the railway overpass and continuing south along the centre of York Street to the centre of Bremner Boulevard then west along the centre of Bremner Boulevard to the east curb of Lower Simcoe Street then south along the east curb of Lower Simcoe Street to the north curb of Lake Shore Boulevard West then west along the north curb of Lake Shore Boulevard West to the south end of the walkway that is located immediately west of the John Street Pumping Station and runs between Lake Shore Boulevard West and the bus parking lot of the Rogers Centre then north along the west edge of that walkway to the bus parking lot of the Rogers Centre then west along the south edge of the bus parking lot of the Rogers Centre to the west edge of the driveway running between the parking lot and Bremner Boulevard then north along the west edge of that driveway to the north curb of Bremner Boulevard then west along the north curb of Bremner Boulevard to the east curb of Navy Wharf Court then north along the east curb of Navy Wharf Court to the southwest point of the building known as 73 Navy Wharf Court then east along the exterior of the south wall of that building then north along the exterior of the east wall of that building to the curb of Blue Jays Way then north along the east curb of Blue Jays Way to the curb at the southeast corner of Blue Jays Way and Front Street West
SCHEDULE 2DESIGNATED PLACES REFERRED TO IN PARAGRAPH 2 OF SECTION 1
1 The area within the area described in Schedule 1 that is within five metres of a line drawn as follows Beginning at the south end of the walkway that is located immediately west of the John Street Pumping Station and runs between Lake Shore Boulevard West and the bus parking lot of the Rogers Centre then north along the west edge of that walkway to the bus parking lot of the Rogers Centre then west along the south edge of the bus parking lot of the Rogers Centre to the west edge of the driveway running between the parking lot and Bremner
15
Boulevard then north along the west edge of that driveway and ending at Bremner Boulevard
2 The area within the area described in Schedule 1 that is within five metres of a line drawn as follows
Beginning at the southwest point of the building known as 73 Navy Wharf Court then east along the exterior of the south wall of that building then north along the exterior of the east wall of that building and ending at the curb of Blue Jays Way
3 The below-grade driveway located between Union Station and Front Street West and running between Bay Street and York Street in the City of Toronto
F Information Given to Public Regarding Security Protocol
Attempts were made to inform the public about the security measures that would be in
place leading up to and throughout the G20 The City of Toronto in consultation with
the ISU produced an information article20 and flyers21 No mention is made in the article
or flyers of the PWPA or O Reg 23310 and the powers given to the police The City of
Toronto also prepared an advertisement which appeared in local newspapers22 The
original version of the advertisement made no reference to the fact that people would be
subject to a search when attempting to access the security perimeter although reference
was made to the requirement to show identification and to have a valid purpose for
entering the restricted area A later version of the advertisement included additional text
advising that anyone requesting access to the security perimeter may be subject to a
search However just as with the article and flyers no specific mention was made of the
PWPA or O Reg 23310
20 A million copies of the newsletter Our Toronto which contained an article entitled ldquoWhat to expect during the G20 ndash June 26 amp 27 2010rdquo were delivered to homes in the City of Toronto21 Approximately 10000 flyers were sent to homes and businesses within the affected area The flyercontained general information about security and the anticipated effects on traffic22 The advertisement appeared in the Toronto Star Toronto Sun and Metroland community papers
16
In the days leading up to and throughout the G20 Summit there was apparently a
misunderstanding on the part of the police regarding a purported ldquofive-metre rulerdquo This
confusion likely emanated from the ldquofive-metresrdquo referenced in Schedule 2 of O Reg
23310 However the purpose of Schedule 2 was to designate as ldquopublic work(s)rdquo three
specific private property locations on which the security fence was to be erected that were
not ldquopublic worksrdquo The remainder of the fence was on public sidewalks and streets
which are ldquopublic worksrdquo To ensure that the fence was located on a ldquopublic workrdquo the
drafters designated the area within five metres of the security fence in these three
locations as a ldquopublic workrdquo23 Unfortunately the wording of Schedule 2 was very
cumbersome and the relationship between the area defined in Schedule 1 and the five-
metre reference in Schedule 2 was difficult to understand
Because of this confusion unfortunately the message was conveyed that the regulation
provided for a five-metres zone outside the entire security fence and that therefore the
PWPA applied to this entire area24 The media reported during the G20 summit that the
police had ldquosweepingrdquo powers pursuant to the PWPA within five-metres outside of the
exterior security fence25 O Reg 23310 did not provide the police such authority
23 Attached as Appendix 10 is a copy of a map showing the three specific areas designated in Schedule 2 of O Reg 2331024 Jennifer Yang ldquoJust being near the G20 security zone can get you arrestedrdquo Toronto Star (25 June 2010) online thestarcom lthttpwwwthestarcomnewsgtatorontog20summitarticle828498--just-being-near-the-g20-security-zone-can-get-you-arrestedgt25 David Rider et al ldquoDalton McGuinty Bill Blair defend quiet boost in arrest powersrdquo Toronto Star (26 June 2010) online thestarcom lthttpwwwthestarcomnewsgtatorontog20summitarticle828974--dalton-mcguinty-bill-blair-defend-quiet-boost-in-arrest-powersgt
17
SECTION 3 COMMENTARY
A Public Policy Considerations
There are some overarching public policy considerations which affect the issues I have
been asked to address in the Terms of Reference
As stated earlier the legislation was the product of emergency World War II concerns
related to the possibility of enemy sabotage of important infrastructures The legislative
debates in September of 1939 were particularly concerned with the provincersquos
hydroelectric facilities However notwithstanding these apparently specific concerns
when drafted the definition of ldquopublic workrdquo is extraordinarily broad and from a policy
standpoint raises questions of overbreadth especially given the ability to designate
almost anything a public work In a mere definition section s 1 of the legislation allows
the Lieutenant Governor in Council to designate ldquoany other building place or workrdquo as a
ldquopublic workrdquo However taken to its logical conclusion an entire city or more could be
designated as a ldquopublic workrdquo The definition of ldquopublic workrdquo includes ldquoany provincial
and any municipal public buildingrdquo but ldquopublic buildingrdquo is not further defined thereby
creating an element of uncertainty as to the specific provincial and municipal buildings
captured by this definition While perhaps extreme measures in times of war require
flexibility in all other circumstances legislation of this nature requires limitations and a
more specialized approach
The expression ldquoprivate armyrdquo was used in the Ontario legislative debate in 1939
Theoretically at least private armies could be created through the use of the ldquoguardrdquo
appointing authority by the many individuals who are authorized to appoint guards
pursuant to the PWPA This authority was apparently in response to the Federal
18
Governmentrsquos refusal to assume through the Defence Department the responsibility of
guarding utilities and industries essential to the war effort While such a result might not
have been contemplated in a parliamentary democracy it is clearly unwise to leave such
a possibility open
Section 3 of the PWPA provides in part that a guard or a peace officer
(a) may require any person entering or attempting to enter any public work or any approach thereto to furnish his or her name and addresshellipand to state the purpose for which he or she desires to enter the public work in writing or otherwise
The primary problem I see with this section is the vagueness of the term ldquoapproach
theretordquo An approach could begin at a considerable distance from the public work
Section 6(b) also provides for the making of regulations ldquodefining the areas that
constitute approaches to public works either generally or with regard to a particular
public workrdquo
In addition s 3(b) of the PWPA provides that a guard or peace officer ldquomay search
without warrant any person entering or attempting to enter a public workrdquo This section
does not permit any person to abandon any attempt to enter a public work in order to
avoid being subjected to a warrantless search Such conduct is adopted by persons who
decide not to enter a secured courthouse in order to avoid a warrantless search
Section 4 provides that for the purposes of the PWPA the statement under oath made by
persons engaged in the operation of a public work ldquoas to the boundaries of the public
work is conclusive evidence thereofrdquo Section 4 should be considered with s 5(1) which
provides that ldquoevery person found upon a public work or any approach thereto without
lawful authority the proof whereof lies on him or her is guilty of an offencehellip(emphasis
19
added)rdquo The provision in s 4 that ldquothe statement under oathhellipis conclusive evidence
thereofrdquo appears to remove from a courtrsquos consideration what could be a legitimate
dispute as to the boundaries of a public work or the approach thereto Furthermore the
apparent reversal of the onus of proof regarding lawful authority to be found in a public
work or an approach found in s 5 is also troublesome from a policy and legal point of
view
Accordingly if utilized to the extreme many government officials could appoint many
private armies to restrict access to many (in fact any) public places where the mere
statement under oath by the private guard of the boundaries of the areas under restricted
access is conclusive proof thereof Such potential for abuse is beyond troubling to say
the least
B Review of other Public Reports
As is evident from the foregoing discussion many issues arise regarding the operation of
the PWPA in todayrsquos context These considerations and others also formed the basis of
concerns raised in public reports which I was asked to review
1 Reports of the Canadian Civil Liberties Association
The CCLA preliminary G20 report26 dealt with most of the police related events that
occurred in Toronto during the G20 conference during the weekend of June 26th and 27th
2010 I will only make reference to a few portions of the report that deal with the Terms
of Reference
26 Canadian Civil Liberties Association A Breach of the Peace ndash A Preliminary Report of Observations During the 2010 G20 Summit June 29 2010 online Canadian Civil Liberties Association lthttpcclaorgwordpresswp-contentuploads201006CCLA-Report-A-Breach-of-the-Peace-Preliminary-report-updated-July-8pdfgt
20
The report of the CCLA called for the repeal or significant amendment to the PWPA ldquoto
meet basic constitutional standardsrdquo27 The CCLA ldquosuggests that the broad police powers
granted under the Act are inconsistent with current Charter requirementsrdquo28
I agree with the observation of the CCLA that the provisions of the PWPA led to a ldquolack
of clarity as to the scope of the search and seizure powersrdquo29 which created many
difficulties and conflicts that probably could have been avoided I would also certainly
agree with a conclusory comment in this preliminary report that ldquoit is the duty of police
officers to act with fairness and equanimity toward all citizens in accordance with the law
of the country The presumption of innocence and the protection against arbitrary arrests
and detention are at the core of a commitment to justicerdquo30
The CCLA in partnership with the National Union of Public Employees organized
public hearings for two days in Toronto and one day in Montreal in November of 2010
which they referred to as a Citizens Inquiry The Citizens Inquiry heard from 63 members
of the public who had witnessed policing incidents or had been detained Several lawyers
and academics also participated in the hearing and offered commentary on the events of
the G20 from a legal or policing perspective including issues related to the PWPA A
report of the hearings titled ldquoG20 Toronto Breach of the Peace Public Hearingsrdquo was
released on February 28 2011 which also referred to the PWPA31
27 Ibid p 2228 Ibid p 929 Ibid p 1230 Ibid p 2131 Canadian Civil Liberties Association and the National Union of Public and General Employees G20 Toronto Breach of the Peace Public Hearings February 2011 online Canadian Civil Liberties Association lthttpcclaorgwordpresswp-contentuploads201102Breach-of-the-Peace-Final-Reportpdfgt
21
2 The Ontario Ombudsman Report
The Ontario Ombudsman commenced an investigation after receiving complaints relating
to a variety of issues concerning the G20 The Marin Report recognized that ldquotypically
international summits attract protests and protests can turn violent and even deadlyrdquo32
The report therefore does not quarrel with the requirement that a high level of security is
required for such events
The report in my view accurately describes the PWPA as ldquounique in Canada in terms of
the breadth of its reach and the powers it confershellipno other Canadian statute defining
lsquopublic worksrsquo contains provisions similar to those found in Ontariorsquos Actrdquo33
32 Ontario Ombudsman report Investigation into The Ministry of Community Safety and Correctional Servicesrsquo Conduct in Relation to Ontario Regulation 23310 under the Public Works Protection Act ldquoCaught in the Actrdquo by Andreacute Marin (Toronto Ombudsman of Ontario December 2010) online Ombudsman of Ontario lthttpwwwombudsmanoncamedia157555g20final1-enpdfgt (ldquoMarin Reportrdquo) at para 733 Ibid at para 97
22
SECTION 4 POWERS OF THE POLICE
Pursuant to the Terms of Reference I have been asked to consider for future purposes
whether the powers given to peace officers and guards under the PWPA are necessary to
protect public works secure intergovernmental conferences or for any other purposes
To answer that question it is necessary to assess whether the current common law and
statutory regime provide the police with sufficient powers to perform these vital services
A Common Law Powers and Powers Pursuant to Police Services Acts
The police have extensive common law powers that can be used in protecting and
securing intergovernmental conferences and in protecting public works It is necessary to
examine those powers in order to assess whether and what if any additional powers are
needed such as those provided by the PWPA
Of particular assistance in this regard is R v Knowlton34 where the Supreme Court of
Canada considered whether the powers possessed by peace officers at common law and
statute in securing an area for the protection of a foreign dignitary were lawful The
Supreme Court of Canada held that in order for the exercise of peace officer powers to be
lawful the powers must satisfy the two step test set out in R v Waterfield35 First the
power must be in furtherance of a lawful duty Traditional common law peace officer
duties include the preservation of the peace and the prevention of crime These common
law police duties amongst others are now statutorily enshrined in s 42(1) of Ontariorsquos
Police Services Act (and other provincial police services acts)36 The second part of the
test requires an evaluation of whether the conduct of the peace officer was ldquojustifiedrdquo To
34 [1974] SCR 443 [ldquoKnowltonrdquo]35 See for example R v Dedman [1985] 2 SCR 236 RSO 1990 c P15
23
do so one applies the standard of what is reasonably necessary in light of the totality of
the circumstances In evaluating whether the conduct of the peace officer was justified it
is important to consider ldquothe duty being performed the extent to which some interference
with individual liberty is necessary in the performance of that duty the importance of the
performance of the duty to the public good the nature of the liberty being interfered with
and the nature and extent of the interferencerdquo37
In Knowlton police in Edmonton cordoned off an area as part of the security
arrangements for the visit of Premier Kosygin of the USSR Premier Kosygin had been
assaulted in Ottawa a few days prior to his visit to Edmonton Knowlton entered the
secured area questioning the power of the peace officer to prevent his entry He was
arrested without a warrant and charged with obstructing a peace officer in the execution
of his duties Knowlton argued that the peace officer did not have the power to prevent
his entry and was not acting in the execution of his duty
The Supreme Court of Canada emphasized the heightened importance of security when
there are visiting foreign dignitaries38
It is notorious and of common knowledge that the official visit of the head of state or high rank dignitary of a foreign country friendly as either may be is an event that frequently engenders a real or apprehended threat to the preservation of peace and that calls therefore for the adoption of proper and reasonable security measures in and by the host countryhellipThe restriction of the right of free access of the public to public streetshellipwas one of the steps--not an unusual one--which police authorities considered and adopted as necessary for the attainment of the purpose aforesaid In my opinion such conduct of the police was clearly falling within the general scope of the duties imposed upon them
37 R v Mann [2004] 3 SCR 59 at 7938 Supra note 34 at 447-448
24
In addressing the first part of the Waterfield test the Court referenced provisions of the
Alberta Police Act and the Criminal Code and concluded that the conduct of the peace
officers fell within the general scope of the duties imposed upon them for example
preservation of the peace and prevention of crime39
According to the principles which for the preservation of peace and prevention of crime underlie the provisions of s 30 amongst others of the Criminal Code these official authorities were not only entitled but in duty bound as peace officers to prevent a renewal of a like criminal assault on the person of Premier Kosygin during his official visit in Canada In this respect they had a specific and binding obligation to take proper and reasonable steps The restriction of the right of free access of the public to public streets at the strategic point mentioned above was one of the steps--not an unusual one--which police authorities considered and adopted as necessary for the attainment of the purpose aforesaid In my opinion such conduct of the police was clearly falling within the general scope of the duties imposed upon them
In analyzing the second step of the Waterfield test the Court concluded that there was no
evidence indicating the police officers resorted to an unjustifiable use of the powers
associated with the duties imposed on them
The Court in Knowlton recognized broad police powers to cordon off areas as part of the
security arrangements involving internationally protected persons In addition the Court
found that the warrantless arrest in that case was not an unjustifiable or unreasonable use
of powers associated with the police duties to preserve the peace order public safety and
to enforce the law and prevent crime Finally the Court found that peace officers were
duty bound ldquoto prevent a renewal of a like criminal assault on the person of Premier
Kosygin during his official visit in Canadardquo40 Furthermore it stated the closing of public
39 Ibid 40 Ibid at 447
25
streets ldquowas one of the steps -- not an unusual one -- which police authorities considered
and adopted as necessaryrdquo41
The Knowlton decision clearly acknowledged that the police had the duty and authority to
establish and enforce a secured area to protect a foreign dignitary In order to carry out
these duties the police may do what is reasonably necessary in light of the totality of the
circumstances
Though Knowlton was decided prior to the enactment of the Canadian Charter of Rights
and Freedoms (the ldquoCharterrdquo) this does not in my view affect the clear statement by the
Supreme Court of Canada regarding the duty of the police under the common law and the
Alberta Police Act to provide this security While the facts of Knowlton were quite
compelling in relation to the obvious need to provide adequate security for Premier
Kosygin the decision is equally important authority regarding the general responsibilities
of the police at common law and statute in relation to the preservation of the peace
B Other Statutory Powers
1 Criminal Code
Some specific powers are provided to peace officers pursuant to the Criminal Code42
Section 31 gives peace officers the power to arrest an individual for breach of the peace
Peace officers can arrest those committing the breach of the peace or those who on
reasonable grounds heshe believe are about to join in or renew the breach of the peace
Peace officers also have powers at their disposal under ss 63-69 of the Criminal Code to
deal with the offences of unlawful assembly and riots
41 Ibid at 447-448 42 RSC 1985 c C-46
26
2 Trespass to Property Act
The Ontario Trespass to Property Act43 is a potential source of police power to arrest
without warrant those who are unlawfully on certain premises or who were recently
unlawfully on the premises and refuse to give their name and address44 This statute
deals with illegal entry into both private and public property by creating the offence of
trespass for those who without the express permission of the occupier enter on to
premises or engage in an activity on the premises when it is prohibited by the statute45
Though this statute is primarily used by private property owners to keep unwanted people
off of their property it has also been invoked by the Speaker of the House46 and by the
City of Toronto47 It must be noted however that using the Trespass to Property Act in
relation to removing individuals from ldquopublicrdquo places may raise Charter issues48
3 Foreign Missions and International Organizations Act
The RCMP as peace officers have the general duty to preserve the peace and prevent
crime and offences as set out in s 18 of the Royal Canadian Mounted Police Act49
Additional duties found in s 17 of the Royal Canadian Mounted Police Regulations
198850 include the protection of ldquointernationally protected personsrdquo as defined in s 2 of
the Criminal Code Internationally protected persons include heads of state and their
43 RSO 1990 c T2144 Ibid ss 9(1) 1045 Ibid s 2(1)46R v Behrens [2004] OJ No 5135 (CJ) The Court held that the issue of the trespass notices fell under the Speakerrsquos parliamentary privilege and were not reviewable even on the basis of a Charter argument47R v Semple [2004] OJ No 2137 (CJ)48 In R v Semple the defendants were charged under the Ontario Trespass to Property Act for entering the grounds of Toronto City Hall after being banned from doing so In the end the Court held that the defendantsrsquo peaceful entry onto the grounds was an expression as per s 2(b) of the Charter Torontorsquos notice under the Act infringed on this freedom and in these circumstances it could not be justified under s 1 of the Charter 49 RSC 1985 c R-1050 SOR88-361
27
family members The RCMPrsquos duty to protect internationally protected persons is also
found in s 6(1) of the Security Offences Act51
In addition Canada is a signatory of the United Nations Convention on the Prevention
and Punishment of Crimes against Internationally Protected Persons including
Diplomatic Agents52 This Convention provides that the Government of Canada must
protect visiting heads of state or government foreign ministers representatives or
officials of a state or any official or other agent of an international organization of an
intergovernmental character and the family members that accompany him or her The
RCMP has the responsibility to carry out these security measures
Pursuant to s 101(1) of the FMIOA ldquoThe Royal Canadian Mounted Police has the
primary responsibility to ensure the security for the proper functioning of any
intergovernmental conference in which two or more states participate that is attended by
persons granted privileges and immunities under this Act and to which an order made or
continued under this Act appliesrdquo
The powers to carry out this mandate are found in s 101(2) of the FMIOA ldquothe Royal
Canadian Mounted Police may take appropriate measures including controlling limiting
or prohibiting access to any area to the extent and in a manner that is reasonable in the
circumstancesrdquo It is noteworthy that the FMIOA has legislated the same powers
provided to the police under common law and statute
In order to trigger the RCMP powers described in s 101 the Governor in Council on the
51 RSC 1985 c S-752 UNGA Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons including Diplomatic Agents 20 February 1977 UN Doc I-15410
28
recommendation of the Minister of Foreign Affairs and pursuant to s 5 of the FMIOA
made the G8 Summit Privileges and Immunities Order 201053 on December 10 2009
This order was repealed and a subsequent order54 was made on January 13 2010 A
similar order55 for the G20 Summit was made on March 11 201056
Therefore during the G20 the RCMP had the specific statutory power to limit or
prohibit access to any area and to any extent as long as the measures were appropriate
and done in a manner that was reasonable in the circumstances ldquoThe RCMP may secure
the perimeter of the security zone on land with fencing and restrict access to this zone
through the use of checkpoints and other measuresrdquo57
Though not invoked during the G20 s 101(4) of the FMIOA provides that arrangements
can be entered into with a province concerning the responsibilities of members of the
RCMP and members of the provincial and municipal police forces with respect to
ensuring the security for the proper functioning of an intergovernmental conference No
information was provided to me as to why such an arrangement was not entered into for
the G20
These intergovernmental security provisions of the FMIOA were enacted just prior to the
G8 being held in Kananaskis Alberta in 2002 In light of violent protests at international
events and the 911 terrorist attacks in the United States the Federal Government
53 SOR2009-33654 SOR2010-1355 SOR2010-6256 Supra note 17 ldquoUpon such an Order being made the RCMP in co-operation and collaboration with other police forces becomes impressed with the primary responsibility of ensuring not only the protection of the IPPs but also ensuring lsquosecurity for the proper functioningrsquo of the intergovernmental conference To that end the FMIOA provides that the lsquoappropriate measures including controlling limiting or prohibiting access to any area to the extent and in a manner that is reasonable in the circumstancesrsquo may be takenrdquo57 Ibid
29
considered it timely ldquoto clarify in statute the present common law authority for police to
provide security and protection for high profile international eventsrdquo58 At such events it
was intended that ldquothe RCMP is the lead to make sure that security is providedrdquo59
Given that it was clearly the intention of the Federal Government to have the RCMP as
the lead police force at these international events consideration should be given to
expand the use of the FMIOA to cover all large scale international events such as the
Olympics the Pan American Games and international trade fairs as these events are
routinely attended by heads of state and senior government officials Most recently
Vancouver held the 2010 Olympic and Paralympic Winter Games60 Though federal and
municipal legislation were passed to assist in securing the Games expansion and
application of the FMIOA would have been a better approach The RCMP as the national
police force ought to be in charge pursuant to their authority under the FMIOA
4 Emergency Legislation
Through my consultations with the parties listed in Appendix 2 I heard that while we are
not in a time of war as in 1939 when the PWPA was enacted we live in an age of
international and local terrorism threats Our democratic society must be vigilant in
58 Canada House of Commons Debates 37th Parl 1st Sess No 93 (5 October 2001) at 100059 Canada House of Commons Standing Committee on Public Safety and National Security 40th Parl 3rd
Sess Evidence (25 October 2010)60 In anticipation of this event the Governor General in Council on the recommendation of the Minister of Transport pursuant to the Aeronautics Act (RSC 1985 c A-2) and the Canadian Air Transport Security Authority Act (SC 2002 c 9 s 2) passed the Vancouver 2010 Aviation Security Regulations (SOR2009-298) The purpose of the regulations was to enhance aviation security during the Games The Regulation provided for extra security and extra authorized means to conduct screenings In addition the Vancouver City Council passed the very lengthy By-law No 9962 known as the ldquoVancouver 2010 Olympic and Paralympic Winter Games By-Lawrdquo Specific security measures to be employed at a city live site (described thoroughly in a Schedule to the By-Law) that were enabled by this By-Law included The installation and monitoring of airport style and other security measures including magnetometers and X-ray machines the installation and monitoring of closed circuit television cameras the searching of any person who wished to enter on to a city live site and any bag luggage or other container carried by such person and the prohibiting of access to or removal from a city live site any person who refused to submit to a search
30
maintaining a proper level of security while recognizing that democratic values and
security issues can conflict where public order is at issue It is important to highlight that
provincial legislation exists dealing with both terrorism threats and emergency situations
I have been informed that federal and provincial counter-terrorism plans exist that
address preventing and responding to acts of terrorism
The Police Services Act regulations mandate police forces to establish procedures
consistent with federal and provincial counter-terrorism plans61 and to have policies with
respect to counter-terrorism62 In addition the Emergency Management and Civil
Protection Act allows for orders to be made in situations specifically designated an
ldquoemergencyrdquo63 by the Lieutenant Governor in Council or the Premier that regulate or
prohibit travel and movement to from or within any specified area64 Therefore the
PWPA is not needed to deal with these emergency situations as specific more recent
emergency legislation is in place for that very purpose
C Gaps in Canadian Police Powers
The Ministry of Community Safety and Correctional Services provided me with an
interesting article published in 2010 entitled ldquoThe Gap in Canadian Police Powers
61 Adequacy and Effectiveness of Police Services O Reg 399 s 2862 Ibid s 2963 Section 1 of the Emergency Management and Civil Protection Act defines an ldquoemergencyrdquo as ldquoemergencyrdquo means a situation or an impending situation that constitutes a danger of major proportions that could result in serious harm to persons or substantial damage to property and that is caused by the forces of nature a disease or other health risk an accident or an act whether intentional or otherwise (ldquosituation drsquourgencerdquo)64 RSO 1990 c E9 s 702(4)
31
Canada needs lsquoPublic Order Policingrsquo Legislationrdquo and co-authored by Wesley Pue and
Robert Diab65
This article was prompted by the debate over the cost nature and extent of security to be
employed at the Vancouver 2010 Winter Olympics The authors criticized the fact that
policing authorities in Canada ldquolack specific statutory authorization to take measures
commonly thought necessary to their missionrdquo66 These measures included security
fences in public areas designated protest areas restricted access to public space police
surveillance and searches without cause
The authors recognize that such powers may be necessary but note that ldquono legislature
has ever expressly conferred such powers on policing authorities outside the context of
international intergovernmental conferences Nor does the common law accord such
powers to state officials on its ownrdquo67 I respectfully disagree with this latter statement
It is my view the police have powers pursuant to the common law and statute as I have
discussed in the preceding section
The authors referred to R v Knowlton68 which I have previously discussed While the
authors give Knowlton a very narrow interpretation stating that ldquoits binding principle is a
good deal narrower than the words taken out of context might suggestrdquo69 I however am
of the view that the decision supports the proposition that police have a broad range of
65 Wesley Pue and Robert Diab ldquoThe Gap In Canadian Police Powers Canada Needs lsquoPublic Order Policingrsquo Legislationrdquo (2010) 28 Windsor Rev Legal Soc Issues 87 Wesley Pue is a professor of legal history at the University of British Columbia and Robert Diab is a PhD candidate at the UBC Faculty of Law66 Ibid p 8867 Ibid68 Supra note 3469 Supra note 65 p 92
32
responsibilities with deep historical roots in the common law and codified in statute a
position shared by the Federal Government when it introduced amendments to the
FMIOA The actions of the police in Knowlton were necessarily incidental to their
common law police duties and powers
The authors conclude that this ldquoauthority of police to create zones of exclusion either as
an incident of the general and ancient duties of constableshelliphas never been established in
the courtsrdquo70 I am of the view however that the role of the police in establishing
security zones relating to a crime a serious accident or other emergency is a routine and
well-accepted use of police powers pursuant to their common law and statutory duties I
am not suggesting that this common law authority permits the police to establish security
zones ldquofor the proper functioning of any intergovernmental conference in which two or
more states participaterdquo71 larger than necessary to fulfill their purpose The FMIOA as
amended in 2002 provides the RCMP with ldquoprimary responsibility to ensure the security
for the proper functioning of the intergovernmental conferencerdquo72 It is interesting
however that when the Federal Government was enacting this specific authority the
legislative debates indicated that the government was merely clarifying ldquoin statute the
present common law authority for police to provide security and protection for high
profile international eventsrdquo73
Security perimeters are routinely erected by police in the context of the commission of a
crime motor vehicle and other accidents as well as the Santa Claus parade and other
70 Ibid p 9671 Supra note 8 s 101(1)72 Ibid73 Supra note 58
33
parades It would in my view be quite impractical and unnecessary to legislate an
extensive code of police powers given their common law and statutory responsibilities to
generally maintain public order It is not advisable in my opinion to be prescriptive in
any way regarding what actions the police can take since they must assess what the
situation warrants while at the same time considering individual rights and freedoms
The details of any police response to an emergency must be tailored to the exigencies
related to the situation
The police clearly have common law and statutory authority to conduct warrantless
searches in specific situations (ldquoin exigent circumstancesrdquo)74 However when
warrantless searches must be carried out on a regular routine basis the police are acting
more like full time security guards and there should be specific statutory authority
provided to give such powers
I certainly accept the general proposition the authors assert that the mobility rights of
citizens should not be unreasonably or unfairly dealt with However one only need be
aware of the massive amount of construction taking place on the streets of Toronto as this
Report is being written to appreciate that it is not always reasonable to expect that ldquothe
rights of businesses homeowners and ordinary citizens to go about their routine
activities without interruptionrdquo75 will go unhindered While generally desirable it cannot
be legally guaranteed At the same time the authors do concede that ldquoimportant as they
74 Supra note 42 s 4871175 Supra note 65 p 89
34
are the rights of assembly movement and protest are not unqualified They can ndash and
should ndash be balanced against other important public needsrdquo76
In my view public policing at times requires innovation as it often benefits from
creative problem solving If police abuse their common law powers related to ldquopublic
order policingrdquo they are accountable to a multiplicity of authorities and the rule of law
most particularly the Charter The legal rights outlined in the Charter such as ldquothe
principles of fundamental justicerdquo77 security ldquoagainst unreasonable search and seizurerdquo78
and ldquothe right not to be arbitrarily detained or imprisonedrdquo79 are described very
generally However they were chosen deliberately as it was recognized that in each case
there is an inherent tension between imposing security measures and fundamental rights
and freedoms Determining which is paramount will be based on the facts of each case
76 Ibid p 9177 Canadian Charter of Rights and Freedoms s 7 Part I of the Constitution Act 1982 being Schedule B to the Canada Act 1982 (UK) 1982 c 1178 Ibid s 879 Ibid s 9
35
SECTION 5 LEGAL ANALYSIS OF THE PUBLIC WORKS PROTECTION ACT
A Legal Analysis of the Legislation
Many stakeholders have questioned the constitutional validity of the PWPA and O Reg
23310 The Ontario Ombudsman seriously questioned whether O Reg 23310 could
pass ldquoconstitutional musterrdquo80 The CCLA suggested that the broad police powers
granted under the PWPA were inconsistent with the Charter81
To the same effect were comments made by Premier Dalton McGuinty who described
the PWPA as ldquoan archaic law that was used to undermine Torontoniansrsquo civil rights
during the G20rdquo82 He elaborated83
The issue is whether itrsquos appropriate given our present-day values and given an old law which I am confident doesnrsquot strike the balance that you and I would want today in terms of public safety and individual freedom of expressionhellipWhen you start talking about civil rights individual freedoms yoursquore talking about those things that in fact define us as a free and democratic societyhellipItrsquos something that is real and meaningful and important to all of us
The Terms of Reference for this Review do not require that I conduct a constitutional
analysis of the PWPA I have however been asked to consider areas for reform and if
appropriate make specific recommendations for amendment or repeal This does require
that I therefore consider whether the legislation may be vulnerable to constitutional
challenge
Section 2(b) of the Charter guarantees everyone the fundamental freedom of expression
The definition of ldquoexpressionrdquo has been interpreted broadly ldquoActivity is expressive if it
80 Supra note 32 at para 23381 Supra note 26 p 982 Robert Benzie and Rob Ferguson ldquoMcGuinty shifts focus to fixing G20 lawrdquo Toronto Star (10 December 2010) online thestarcom lthttpwwwthestarcomnewscanadaarticle905436--mcguinty-shifts-focus-to-fixing-g20-lawgt 83 Ibid
36
attempts to convey meaningrdquo84 While freedom of expression is not absolute there is
very little that is not considered expression However expression that advocates violence
is not protected under s 2(b)85
The Supreme Court of Canada in Committee for the Commonwealth of Canada v
Canada held that s 2(b) ldquodoes not encompass the right to use any and all government
property for purposes of disseminating onersquos views on public matters but I have no doubt
that it does include the right to use for that purpose streets and parks which are dedicated
to the use of the public subject no doubt to reasonable regulation to ensure their
continued use for the purposes to which they are dedicatedrdquo86 It seems clear that
protesting in public streets is a form of expression protected by s 2(b) Protesting at an
intergovernmental conference is clearly expressive in nature
In challenges alleging that a statute contravenes s 2(b) of the Charter a court would
examine whether the purpose or effect of a law contravenes section 2(b)87 There is no
reason to suggest that the purpose of the PWPA was to infringe the freedom of
expression The purpose of the PWPA is to protect important public infrastructures A
court would then have to consider whether the effect of the PWPA may have resulted in
an infringement of freedom of expression
O Reg 23310 defined significant portions of downtown Toronto as a ldquopublic workrdquo
Section 3(c) of the PWPA allows peace officers to refuse entry into public works which
therefore limits the areas in which protesters could express themselves By creating the
84 Irwin Toy Ltd v Queacutebec (Attorney General) [1989] 1 SCR 927 at 96885 Ibid at 97086 [1991] 1 SCR 139 at 165-16687 Peter Hogg Constitutional Law of Canada loose-leaf (consulted on 7 January 2011) 5th ed (Toronto Thomson Reuters Canada Limited 2007) at 43-6
37
relatively large security perimeter designated by the regulation individuals may allege
they were not permitted to communicate directly with those they were protesting against
Furthermore individuals could not communicate in public places such as public streets
where the right to freedom of expression has previously been found to exist88
Commissioner Ted Hughes completed an interim report following a public hearing into
the complaints regarding events that took place with respect to the Asia Pacific Economic
Cooperation (APEC) Conference in Vancouver British Columbia in November 1997
Commissioner Hughes recommended that generous opportunity should be afforded to
peaceful protesters to be seen in their protest activities by guests at the event89
Section 7 of the Charter provides that ldquoEveryone has the right to life liberty and security
of the person and the right not to be deprived thereof except in accordance with the
principles of fundamental justicerdquo The PWPA raises issues regarding the liberty and
security of the person in providing for warrantless searches and stopping for
identification Furthermore vague laws offend two fundamental values of our legal
system90 Firstly individuals are not provided with sufficient guidance as to what
behaviour a law prohibits Secondly those in charge of enforcing the law are not
provided with clear guidance as to how to enforce it A vague law can lead to inconsistent
and arbitrary enforcement91
88 Supra note 86 89 Canada Commission for Public Complaints Against the RCMP APEC ndash Commission Interim Report (31 July 2001) at s 3111 (Commissioner Ted Hughes QC) online Commission for Public Complaints Against the RCMP lthttpwwwcpc-cppgccaprrrepphrapecapec-31-engaspxgt90 Supra note 87 at 47-60 91 ldquoA vague provision does not provide an adequate basis for legal debate that is for reaching a conclusion as to its meaning by reasoned analysis applying legal criteria It does not sufficiently delineate any area of risk and thus can provide neither fair notice to the citizen nor a limitation of enforcement discretion Such
38
As described by Professor Hogg92
The requirement that any limit on rights be prescribed by law reflects two values that are basic to constitutionalism or the rule of law First in order to preclude arbitrary and discriminatory action by government officials all official action in derogation of rights must be authorized by law Secondly citizens must have reasonable opportunity to know what is prohibited so that they can act accordingly Both these values are satisfied by a law that fulfils two requirements (1) the law must be adequately accessible to the public and (2) the law must be formulated with sufficient precision to enable people to regulate their conduct by it and to provide guidance to those who apply the law
As I stated earlier the phrase ldquoany approach theretordquo contained in s 3(a) of the PWPA is
potentially vague No criteria are provided to assist in determining when one is on ldquoany
approach theretordquo A phrase such as ldquoany approach theretordquo is subject to many potential
interpretations It is arguable that this language does not provide reasonable guidance for
individuals to obey the law and for the law to be consistently enforced
Section 8 of the Charter provides that ldquoEveryone has the right to be secure against
unreasonable search or seizurerdquo A warrantless search or seizure is only reasonable if the
search was authorized by law the law itself is reasonable and the manner in which the
search carried out was reasonable93 The fact that no reasonable or probable suspicions
are needed to carry out a search pursuant to s 3(b) of the PWPA raises some issues The
only prerequisite to such a search is that the person or vehicle being subjected to a search
is entering or attempting to enter a public work
a provision is not intelligible to use the terminology of previous decisions of this Court and therefore it fails to give sufficient indications that could fuel a legal debaterdquo (R v Nova Scotia Pharmaceutical Society [1992] 2 SCR 606 at 639-640) 92 Supra note 87 at 38-1293 R v Nolet [2010] SCJ No 24 at para 21
39
Whether the PWPArsquos s 3(b) authority to undertake warrantless searches is ldquoreasonablerdquo
depends on the reasonableness of the impact on the subject of the search ldquoThe
individuals reasonable expectation of privacy must of course be balanced against the
public interest in effective law enforcementrdquo94 It is harder to justify a warrantless search
where the reasonable expectation of privacy is higher For example interference with
bodily integrity will raise the standard of reasonableness Conversely in situations where
people expect to have a lower level of privacy the standard to prove reasonableness is
lower
One rightfully has some expectation of privacy when in public but it does not rise to the
level of privacy that one expects in onersquos home The expectation of privacy further
decreases when one attempts to enter a ldquopublic workrdquo especially in the context of a
secured barrier to an intergovernmental conference
Section 9 of the Charter provides that ldquoEveryone has the right not to be arbitrarily
detained or imprisonedrdquo95 Under s 3(a) of the PWPA a person entering or attempting to
enter or approach a public work must provide his or her name and address and state the
purpose for which he or she desires to enter the public work In order for a guard or
peace officer to carry out this duty the guard or peace officer may ldquostoprdquo the person from
further approaching or entering the public work and the person is not permitted under the
statute to decide not to enter By so doing it is arguable the guard or peace officer has
assumed control over the movement of the individual by a demand or direction The
94 R v Rao [1984] OJ No 3180 at para 79 (CA)95 ldquoDetention under s 9hellipof the Charter refers to a suspension of the individualrsquos liberty interest by a significant physical or psychological restraint Psychological detention is established either where the individual has a legal obligation to comply with the restrictive request or demand or a reasonable person would conclude by reason of the state conduct that he or she had no choice but to complyrdquo (R v Grant [2009] SCJ No 32 at para 44)
40
PWPA provides for a significant legal consequence if the demand or direction is not
followed since ldquoEvery person who neglects or refuses to comply with a request or
direction made under this Act by a guard or peace officer and every person found upon a
public work or any approach thereto without lawful authority the proof whereof lies on
him or her is guilty of an offence and on conviction is liable to a fine of not more than
$500 or to imprisonment for a term of not more than two months or to bothrdquo96
Pursuant to s 3(b) of the PWPA a guard or peace officer may search any person entering
or attempting to enter a public work These searches would necessitate the detention of a
person If a guard or peace officer performs such a search he or she has taken control
over the movement of the person by a demand or direction The same serious legal
consequence results from failing to obey this demand or direction as that which results
from failing to obey the demand or direction pursuant to s 3(a) of the PWPA As a
result ldquodetentionsrdquo could occur pursuant to both s 3(a) and s 3(b) of the PWPA
The question that would need to be addressed in any challenge to the PWPA is whether
the detentions permitted by the PWPA are arbitrary in nature The use of the term ldquoany
approach theretordquo is vague and imprecise A person could be deemed to be on ldquoany
approach theretordquo a great distance from the entrance of a public work and their detention
might very well be arbitrary In addition the fact that the guards and peace officers
determine the boundaries of the ldquoapproachesrdquo which cannot be contested seems
arbitrary as well as who they chose to search
96 It should be noted that not all communications with state authorities and police officers will amount to a detention The question is whether a person may reasonably believe that he or she is free to refuse to comply
41
Section 11(d) of the Charter provides that ldquoAny person charged with an offence has the
right to be presumed innocent until proven guilty according to law in a fair and public
hearing by an independent and impartial tribunalrdquo This requires that the Crown have the
burden of proving the guilt of an individual charged with an offence97 Provisions that
place the burden on the accused to disprove on the balance of probabilities an essential
element of an offence raises s 11(d) concerns because convictions would be possible
even if reasonable doubt existed98 The presumption of innocence is not only infringed
upon by a requirement that an accused disprove an essential element of an offence but
also any requirement on an accused to prove a fact on the balance of probabilities to
avoid conviction
Section 5(1) of the PWPA states that ldquoEvery person who neglects or refuses to comply
with a request or direction made under this Act by a guard or peace officer and every
person found upon a public work or any approach thereto without lawful authority the
proof whereof lies on him or her is guilty of an offence and on conviction is liable to a
fine of not more than $500 or to imprisonment for a term of not more than two months or
to bothrdquo For the offence of being found upon a public work or on any approach to a
public work without lawful authority the burden of proof has been ldquoshiftedrdquo from the
Crown to the accused to prove lawful authority
As the foregoing analysis reveals there are certainly many concerns that arise when one
places the PWPA under the lens of the Charter However the rights and freedoms
provided by the Charter are not absolute They are ldquosubject only to such reasonable
97 R v Oakes [1986] 1 SCR 10398 Ibid at 132
42
limits prescribed by law as can be demonstrably justified in a free and democratic
societyrdquo99
In assessing whether a law which infringes the Charter is saved by s 1 a court examines
both the object of the law and the measures taken to achieve that objective A lawrsquos
objective achieves the status of being sufficiently important to justify overriding a
Charter right only when it is consistent with the values of a free and democratic society
The objective must relate to pressing and substantial concerns and not concerns that are
trivial and must be focussed on ldquothe realization of collective goals of fundamental
importancerdquo100 The measures adopted must be ldquorationally connectedrdquo to the objective of
the law101 The measures ldquoshould impair lsquoas little as possiblersquo the right or freedom in
questionrdquo102 Furthermore there must be ldquoa proportionality between the effects of the
measures which are responsible for limiting the Charter right or freedom and the
objective which has been identified as of lsquosufficient importancersquordquo103
An issue that may affect whether the potential limitation on rights and freedoms of the
PWPA and O Reg 23310 were ldquoprescribed by lawrdquo is whether the regulation was
adequately accessible to the public The Ontario Ombudsman the CCLA and the Ontario
Bar Association (ldquoOBArdquo) all noted a lack of notice regarding O Reg 23310 and its
effects prior to and during the G20 While the text of the regulation was available prior
99 Charter s 1 The Superior Court of Quebec decision of Tremblay v Queacutebec (Attorney General) [2001] JQ No 1504 (CS) involved an interim injunction brought by an applicant who was denied entry into the secured perimeter during the 2001 Summit of the Americas in Queacutebec City The applicant sought an injunction to either eliminate the security barrier or to be given a pass to let him within the secured perimeter Even though the Court held that the erection of the security zone violated the applicantrsquos right to freedom of expression and peaceful assembly The court held that the infringement was ldquodemonstrably justified in a free and democratic societyrdquo100 Supra note 97 at 136101 Ibid at 139102 Ibid103 Ibid
43
to the G20 it was only available on a website not frequently accessed by the public
Since O Reg 23310 was not published in The Ontario Gazette until after it was
revoked it may be that the regulation was not adequately accessible to the public
Reverse onus offences have been found to be ldquorationally connectedrdquo when there is plainly
a rational connection between the proven fact and the fact to be presumed Reverse
onuses have also been upheld when the burden placed on the Crown would be virtually
impossible to meet (such as proving sanity)104 Even if the accused only has the burden
of disproving the fact that heshe did not have lawful authority to be in a public work or
on an approach thereto there may not be a rational connection between the proven fact
and the fact to be presumed
The history of threats and violence at previous intergovernmental conferences
demonstrated that the protection of G20 participants was a pressing and substantial
concern However given the broadness of the PWPA every exercise of it raises the
potential for Charter scrutiny
Recommendation
Given the public policy considerations I have raised regarding the PWPA and Charter
concerns that could arise I recommend that the PWPA be repealed after the Province has
considered potential policy and security gaps as a result of its repeal
B Other uses of the Public Works Protection Act
It appears from my consultations with stakeholder groups that if the PWPA is repealed
104 R v Chaulk [1990] 3 SCR 1303 at 1340
44
there are two areas which may require legislation to provide specific peace officer
powers These two areas are court security and the protection of nuclear power facilities
and other power generating infrastructures
1 Court Security
During my decade as Ontariorsquos Attorney General (1975 to 1985) there were three
murders in provincial courthouses as well as many threats to members of courthouse staff
and others As violent acts in courthouses can be anticipated courtroom security is often
required
Individuals are compelled to go to court for a variety of reasons such as appearing as an
accused as a witness or for jury duty To provide protection to those who work there or
are compelled to attend an adequate level of court security may require a search without
warrant of each and every individual who seeks to enter a courthouse It is not reasonable
to require prior judicial authorization for each search that takes place
The courts have considered the constitutionality of these provisions of the PWPA in
conjunction with section 137 of the Ontario Police Services Act in the context of court
security
Section 137 of the Ontario Police Services Act imposes a responsibility on municipal
police services boards to secure the premises where court proceedings are conducted and
includes
1 Ensuring the security of judges and of persons taking part in or attending proceedings
45
2 During the hours when judges and members of the public are normally present ensuring the security of the premises
3 Ensuring the secure custody of persons in custody who are on or about the premises including persons taken into custody at proceedings
4 Determining appropriate levels of security for the purposes of paragraphs 1 2 and 3
In R v Campanella105 Ms Campanella was attending the John Sopinka Courthouse in
Hamilton At the courthouse there were signs posted stating that those who entered
would be searched for weapons When Ms Campanellarsquos bag was searched marijuana
was found and she was charged with the possession of marijuana She argued that her s
8 Charter protection against unreasonable search and seizure had been violated and the
marijuana discovered during the search should therefore be excluded as evidence The
trial judge and the summary convictions appeal court rejected the section 8 Charter
argument and the appellant appealed to the Ontario Court of Appeal
The Ontario Court of Appeal agreed that ldquogiven the importance of the government
objective and the context in which these searches take place it is reasonable to authorize
warrantless searches of those entering courthouse facilitiesrdquo106 The Court stated ldquothe
only effective way to diminish the risk in a large courthouse is to subject everyone
without prior security clearance to some kind of inspection I can see no other feasible
means of achieving the aimrdquo107
The Court also pointed out the concern relating to the erosion of the benefits and
105 [2002] OJ No 5104 (SCJ) affrsquod [2005] OJ No 1345 (CA) [ldquoCampanellardquo]106 R v Campanella [2005] OJ No 1345 at para 17 (CA)107 Ibid at para 19
46
protections conferred by s 8 of the Charter108
I am sensitive to the concern that we should not erode the benefits and protections of s 8 by gradually sanctioning ever-greater intrusions into privacy because of unfounded fears We should not lightly accept that searches in public places are justified solely because people have become used to them and expect them However the record in this case establishes the justification for the kinds of searches carried out in this case
Ultimately the appeal was dismissed and s 137 of the Police Services Act and s 3(b) of
the PWPA) were held to comply with s 8 of the Charter109
In its consultations with me the OBA similarly stated that the existing nature of court
security is necessary and is generally ldquowell toleratedrdquo At the same time however it
submits that the security regime should not be ldquoshoehornedrdquo into the PWPA regime and
that it would be preferable to provide a legislative framework tailored for the specific
security requirements While the PWPA has been relied upon as support for the exercise
of powers by the police in providing court security the OBA submits that the PWPArsquos
ldquosingle security schemerdquo which declares something a ldquopublic workrdquo is an ldquoawkward
blunt instrument in a world where more specialized tools are necessaryrdquo When
warrantless searches are being done on a routine basis it is advisable to have specific
legislation providing peace officers with such power
Recommendation
Court security legislation is currently in place in many jurisdictions across Canada and
contain provisions that permit warrantless searches of persons wanting to access a
108 Ibid at para 25109 The Court in R v SS [2005] OJ No 5002 (SCJ) agreed with the findings and rationale of the Court of Appeal in Campanella
47
courthouse The constitutional validity of such legislation in Manitoba was upheld by that
provincersquos highest court110
Given the ongoing need for warrantless searches at courthouses the Province of Ontario
should consider specific court security legislation in Ontario to support the security
measures in our courthouses if the PWPA is to be repealed taking into consideration the
responsibilities of the municipal police services boards provided in s 137 of the Police
Services Act This legislation should only be passed after proper notice consultation and
legislative debate
2 Power Generating Infrastructures
It is clear from the submissions that I received from representatives of OPG and the
Canadian Nuclear Safety Commission (ldquoCNSCrdquo) that the PWPA currently plays a role in
providing security officers with the powers to secure power generating infrastructures
including the ability to carry firearms and the ability to stop and require identification
from those in proximity to those nuclear plants
Security is of the utmost importance in protecting a nuclear power plant Members of the
public do not need to access a nuclear or similar power facility unless employed at the
facility or carrying out work for the facility111
The security of areas within nuclear power plants is governed by the Nuclear Security
110 R v Lindsay [2004] MJ No 380 (CA) 111 Though the discussion focuses on nuclear power plants I have been informed that other power generating infrastructures use the PWPA to designate their security officers as guards As a result if the PWPA is repealed it will be necessary to broaden the consultations in relation to these other power generating infrastructures
48
Regulations112 Every nuclear power plant must be located within a ldquoprotected areardquo113
This protected area is the area within a fenced perimeter which is alarmed and
continually patrolled This area must be equipped with devices that employ two
independent systems to detect intrusion into the area114 The Nuclear Security
Regulations also provide detailed specifications for the barrier which must enclose the
protected area115 In addition licensees must ldquoidentify all vital areas and implement
physical protection measures ndash including access control and measures designed to delay
unauthorized accessrdquo116
The Nuclear Security Regulations also provide detailed provisions regarding entry into
protected areas No person can ldquoenter a protected area without physical proof of the
recorded authorization of the licenseerdquo117 Further to this on entry into a protected area
ldquothat personrsquos identity shall be verified by two separate personnel identity verification
systems one of which is an access card reader and the other of which is a biometric
personnel identity verification devicerdquo118 Licensees must also ldquoensure that vehicle
portals are used for the entry and exit of land vehicles into and from a protected areardquo119
Physical protection measures are also required to reduce the chance of a forced land
vehicle entry into a protected area120
The power to conduct searches upon entry to a protected area is also provided by the
112 SOR2000-209 113 Ibid s 8114 Ibid s 11(a)(i)115 Ibid s 9116 Ibid s 141117 Ibid s 17(1)118 Ibid s 171119 Ibid s 91(1)120 Ibid s 91(4)
49
Nuclear Security Regulations Signs must be posted that are visible to people about to
enter the protected area stating that they must allow a nuclear security officer (ldquoNSOrdquo) to
ldquosearch them and everything in their possession including any land vehicle for weapons
and explosive substancesrdquo121 In addition when leaving the protected area people must
allow NSOs to ldquosearch them and everything in their possession including any land
vehicle for Category I II or III nuclear materialrdquo122 People are not permitted to enter or
leave a protected area unless these searches are carried out123 The Nuclear Security
Regulations provide for the method of search including ldquoa hand-held scanner a walk-
through scanner or any similar devicerdquo124 In addition if an NSO determines it
necessary a frisk search can be carried out by a person of the same sex125
I have been informed that the area outside of but adjacent to the ldquoprotected areardquo is
referred to as the ldquocontrolled areardquo This area includes roadways and waterways within
the nuclear facilityrsquos property boundaries adjacent to or in close proximity to the nuclear
power plantrsquos protected area and may be generally accessible to the public
As a result of the September 11 2001 terrorist attacks the Nuclear Security Regulations
were amended to require that high security nuclear facilities maintain an on-site armed
Nuclear Response Force (ldquoNRFrdquo)126 The NRF is composed of specialized NSOs
Section 32 of the Nuclear Security Regulations requires the NRF to be capable of making
an effective intervention taking into account the threat
121 Ibid s 27(1)(a)122 Ibid s 27(1)(b)123 Ibid s 27(2)124 Ibid s 27(5)(a)125 Ibid s 27(5)(b)126 Ibid s 32
50
Members of the NRF are mandated by the Nuclear Security Regulations to be ldquotrained in
the use of firearms authorized to carry firearms in Canada and qualified to use themrdquo127
However to satisfy this requirement the NRF resorts to the PWPA since the federal
regulations do not authorize the NRF to carry firearms without a licence However
under s 2(1) of the PWPA NSOs are designated as ldquoguardsrdquo with the powers of a peace
officer most significantly to carry and use firearms without having to be licensed128
Such a designation also enables the OPG to acquire and dispose of firearms
In the consultations I had with the OPG and the CNSC they advised me that NSOs
receive training equivalent to Canadian police standards and that NRF officers receive
training equivalent to federal and provincial police tactical team requirements
Another aspect of the PWPA used to secure nuclear power plants relates to powers
exercised by NSOs in ldquocontrolled areasrdquo The federal regulations do not provide the
NSOs with any power to demand identification within this area However pursuant to
the PWPA as appointed ldquoguardsrdquo the NSOs have the power to demand identity
verification in the controlled area They also have the authority to arrest anyone who
obstructs NSOs in the performance of their duties under the PWPA
In addition to using the PWPA to secure the controlled areas I have been advised by the
OPG that NSOs use powers pursuant to the PWPA to secure areas within 100 metres of a
nuclear facilityrsquos property line immediately adjacent to the controlled area These powers
are exercised under the broad language of the PWPA regarding ldquoapproaches to public
127 Ibid s 1 (on-site nuclear response force definition)128 Section 11707 of the Criminal Code exempts peace officers from licensing requirements for possessing firearms and other prohibited and restricted weapons
51
worksrdquo This is an illustration of the problem with the vagueness of this language in the
legislation As these powers are exercised on public land they could be challenged as a
potential infringement on individual rights and freedoms However I have been advised
that there have been no such incidents to date The need to ensure the security of these
facilities must be taken into the balance
NSOs must be able to monitor and control access to the controlled areas and areas close
to a nuclear power plantrsquos property line This provides for a more secure perimeter
around these facilities They need authority to challenge individuals acting in a suspicious
manner or conducting surveillance of nuclear facilities The OPG has informed me that
areas outside a nuclear facilityrsquos property line immediately adjacent to the controlled
area are still close enough to take advantage of the short distance to conduct intelligence
using high-powered surveillance equipment These nuclear power plants are not located
on isolated islands and are therefore vulnerable Both the Pickering Nuclear Generating
Station and the Darlington Nuclear Generating Station operate within major urban areas
being 30 km and 60 km east of downtown Toronto respectively I am advised that
previous events such as ldquoThe Toronto 18rdquo129 have shown that those intent on targeting
vital infrastructure such as power generating facilities often use reconnaissance and
intelligence gathering as precursor tactics
Recommendation
If the PWPA is to be repealed it is imperative that those who secure our nuclear and
power generating facilities be given the requisite specific legislative powers to do so
129 See for example ldquoLast 2 Toronto 18 accused found guiltyrdquo CBC News (23 June 2010) online cbcca lthttpwwwcbccanewscanadatorontostory20100623toronto-18-verdicthtmlgt
52
The source for these powers should be set out in the federal Nuclear Security
Regulations However if this is not a desired option the Government of Ontario must
consider specific legislation setting out the specific powers required to properly secure
these facilities and the specific location in which these powers can be exercised Such
legislation should not be passed without proper notice consultation and legislative
debate
53
SECTION 6 CONCLUSION
The PWPA was enacted in 1939 to support the war effort At the time the protection of
Ontariorsquos hydroelectric facilities from sabotage was of particular concern Since then the
PWPA has been used to provide the legal foundation for the powers exercised by the
police in providing court security and even more recently by the OPG in securing
nuclear power facilities In June 2010 the PWPA was used to provide powers to secure
intergovernmental conferences The vagueness of the PWPA permits it to be used in
situations when it is arguably not necessary and potentially abusive In my view the
PWPA has been used for purposes beyond its original intent
The time for the PWPA seems to have passed If the Government of Ontario enacts as I
have suggested specific legislation to provide for courthouse security and power
generating infrastructure security it would appear that there is no longer a need for the
PWPA I am also mindful of the existence of counter-terrorism and emergencies
legislation to deal with these situations as they arise
ldquoIn determining the boundaries of police powers caution is required to ensure the proper
balance between preventing excessive intrusions on an individualrsquos liberty and privacy
and enabling the police to do what is reasonably necessary to perform their duties in
protecting the publicrdquo130 The overly broad and vague language of the PWPA does not
strike this required balance with individual rights and freedoms
The late Justice Jackson of the United States Supreme Court stated that every
emergency power once conferred ldquolies about like a loaded weapon ready for the hand of
130 R v Clayton [2007] 2 SCR 725 at 742
54
any authority that can bring forward a plausible claim of an urgent needrdquo131 The need to
protect the public must be balanced with the requirement to preserve fundamental rights
and freedoms
Yet at the same time ldquoCanadians are entitled to demand the best public order policing
possible from their governmentrdquo132 There is no question that we live in a different world
post 911 We live in difficult times with constant threats both domestically and from
abroad The police clearly need to be given adequate powers to carry out their duties
The police use their expertise on a daily basis to assess the powers they require In
instances when they take action that exceeds their powers their actions are examined by
various mandated bodies This process I believe results in the proper balance between
police powers and individual rights and freedoms Therefore any legislation that purports
to grant special police powers must be specific and direct and developed in consultation
with stakeholders and tested through thorough debate in our transparent democratic
system
131 Korematsu v United States 323 US 214 (1944)132 Supra note 26 p 8
55
C Outline of the Public Works Protection Act
Given the fact that the PWPA is a short statute I am reproducing it here in its entirety for
ease of reference
The Public Works Protection Act
Definitions 1 In this Act
ldquoguardrdquo means a guard appointed under this Act (ldquogardienrdquo)
ldquohighwayrdquo means a common or public highway or a part thereof and includes any street bridge and any other structure incidental thereto and any part thereof (ldquovoie publiquerdquo)
ldquopublic workrdquo includes
(a) any railway canal highway bridge power works including all property used for the generation transformation transmission distribution or supply of hydraulic or electrical power gas works water works public utility or other work owned operated or carried on by the Government of Ontario or by any board or commission thereof or by any municipal corporation public utility commission or by private enterprises
(b) any provincial and any municipal public building and (c) any other building place or work designated a public work by the Lieutenant
Governor in Council (ldquoouvrage publicrdquo) RSO 1990 c P55 s 1
Guards appointment 2(1)For the purpose of protecting a public work guards may be appointed by (a) the Solicitor General
(b) the Commissioner of the Ontario Provincial Police Force (c) any inspector of the Ontario Provincial Police Force
(d) the head or deputy head of the municipal council or the chief of police of the municipality in which the public work is located or the person acting in the place or stead of the head or deputy head
(e) the chair or other person who is the head of a board commission or other body owning or having charge of the public work or the person acting in the place or stead of the chair or other person
Powers of guard (2)Every person appointed as a guard under this section has for the purposes of this
Act the powers of a peace officer
5
Duties of guard (3)Subject to the regulations and to any special direction of the Solicitor General or
the Commissioner of the Ontario Provincial Police Force every guard shall obey all directions of the person appointing him or her any inspector of the Ontario Provincial Police Force the chief of police of the municipality in which is located the public work that he or she is protecting and the person who is in charge of the protecting of the public work
Breach of duty of guard (4)Every guard who (a) neglects or refuses to obey a direction that he or she is required to obey under
subsection (3) (b) fails in any manner to carry out his or her duties as guard
(c) leaves the location to which he or she is assigned as guard or ceases to act as guard without leave of any of the persons mentioned in subsection (3) or
(d) otherwise conducts himself or herself in a manner not consistent with his or her duties as guard
is guilty of an offence and on conviction is liable to a fine of not more than $500 or to imprisonment for a term of not more than two months or to both RSO 1990 c P55 s 2
Powers of guard or peace officer 3A guard or peace officer (a) may require any person entering or attempting to enter any public work or any
approach thereto to furnish his or her name and address to identify himself or herself and to state the purpose for which he or she desires to enter the public work in writing or otherwise
(b) may search without warrant any person entering or attempting to enter a public work or a vehicle in the charge or under the control of any such person or which has recently been or is suspected of having been in the charge or under the control of any such person or in which any such person is a passenger and
(c) may refuse permission to any person to enter a public work and use such force as is necessary to prevent any such person from so entering RSO 1990 c P55 s 3
Statement under oath to be conclusive evidence 4For the purposes of this Act the statement under oath of an officer or employee
of the government board commission municipal or other corporation or other person owning operating or having control of a public work as to the boundaries of the public work is conclusive evidence thereof RSO 1990 c P55 s 4
Refusal to obey guard etc 5(1)Every person who neglects or refuses to comply with a request or direction
made under this Act by a guard or peace officer and every person found upon a public
6
work or any approach thereto without lawful authority the proof whereof lies on him or her is guilty of an offence and on conviction is liable to a fine of not more than $500 or to imprisonment for a term of not more than two months or to both
Arrest (2)A guard or peace officer may arrest without warrant any person who neglects
or refuses to comply with a request or direction of a guard or peace officer or who is found upon or attempting to enter a public work without lawful authority RSO 1990 c P55 s 5
Regulations 6The Lieutenant Governor in Council may make regulations
(a) providing for the organization co-ordination supervision discipline and control of guards
(b) defining the areas that constitute approaches to public works either generally or with regard to a particular public work
(c) respecting any matter necessary or advisable to carry out effectively the intent and purpose of this Act RSO 1990 c P55 s 6
1 Discussion of Key Sections
(a) Definition of ldquoPublic Workrdquo
Section 1 defines ldquopublic workrdquo very broadly There are at least three classes of public
works The first class includes certain transportation infrastructure (ldquorailway canal
highway bridgerdquo) energy infrastructure (ldquopower works including all property used for
the generation transformation transmission distribution or supply of hydraulic or
electrical power gas worksrdquo) other public utilities (ldquowater works public utilityrdquo) and
other ldquoworksrdquo generally (ldquoor other workrdquo) This first class of public works may be
publicly or privately owned (ldquoowned operated or carried on by the Government of
Ontario or by any board or commission thereof or by any municipal corporation public
utility commission or by private enterprisesrdquo)
The second class of defined ldquopublic worksrdquo includes all provincial and municipal
buildings ldquoPublic buildingrdquo is not defined It would appear to clearly include buildings
7
such as the Legislative Assembly courthouses and city halls and likely includes
provincially or municipally owned buildings used for governmental purposes It would
also seem to include provincially or municipally owned buildings used for other
purposes such as libraries for example
The third class of ldquopublic worksrdquo includes any other building place or work designated
as a public work by the Lieutenant Governor in Council The word ldquoplacerdquo would appear
to be a very broad term that could include a public park for example The area
designated by O Reg 23310 fell into this class of ldquopublic workrdquo
(b) Appointment and Powers of Guards and Peace Officers
Section 2 of the PWPA provides for the appointment of ldquoguardsrdquo the powers and duties
of peace officers and guards and the penalties for any breach of duty by these peace
officers and guards The PWPA provides that anyone who is a head of a board
commission or other body having charge over a public work can appoint a guard This is
very broad and arguably allows for the appointment of a private army by someone
ldquohaving charge ofrdquo a public work whoever that may be Pursuant to s 2(2) the ldquoguardsrdquo
have the same powers as a ldquopeace officerrdquo
Section 3 sets out the powers a guard or peace officer acquire pursuant to the PWPA
including that a guard may require people entering or approaching a public work to
identify themselves and to state the purpose for which they desire to enter the public
work In addition the guard or peace officer may search without warrant any person or
vehicle entering or attempting to enter a public work The guard or peace officer can
8
refuse to permit a person to enter a public work and can use as much force as necessary in
this endeavour
(c) Boundaries of Public Work
Section 4 provides that a statement under oath by an officer or employee of the person or
entity operating or having control of a public work regarding the boundaries of the public
work serves as conclusive evidence with respect to the boundaries
(d) Offence Power of Arrest
Section 5 provides that any person who neglects or refuses to comply with a request or
direction made by a guard or peace officer is guilty of an offence In addition a person
who enters a public work or an approach to a public work without lawful authority is
guilty of an offence A person found guilty of an offence is liable to a fine of not more
than $500 andor imprisonment of not more than two months A guard or peace officer
has the power to arrest without warrant any person who refuses to comply with a request
or direction of a guard or peace officer and who enters or attempts to enter a public work
without lawful authority
(e) Regulations
Section 6(b) provides that the Lieutenant Governor in Council may define the areas that
constitute approaches to public works while s 6(c) permits regulations to be made
regarding any matter necessary to carry out the intent and purpose of the PWPA
D Events Leading to Passage of O Reg 23310
There was no apparent reference to the possible use of the PWPA until fairly late in the
planning process for the security for the G20 Summit The Province of Ontario originally
9
attempted to obtain support for its security measures through reliance on a federal statute
the Foreign Missions and International Organizations Act (ldquoFMIOArdquo) which provides
that the RCMP can take ldquoappropriate measuresrdquo to ensure the proper functioning of an
intergovernmental conference ldquoin a manner that is reasonable in the circumstancesrdquo8
On May 7 2010 John Burke Deputy Minister of Community Safety and Correctional
Services of Ontario wrote to William Baker Deputy Minister of Public Safety Canada9
stating that security would be enhanced by the existence of an agreement pursuant to s
101(4) of the FMIOA which provides that the Federal Minister of Public Safety may
enter into arrangements with the government of a province concerning the responsibilities
of members of the RCMP and provincial municipal police forces with respect to
ensuring security for the proper functioning of a conference
On June 11 2010 the Provincial Deputy Minister received a reply10 from the Federal
Deputy Minister indicating that such an agreement would not be required for the
Summits since ldquothe current suite of powers and authorities that peace officers possess at
common law or by virtue of any other federal or provincial Act or regulation were
sufficient for the G8 and G20 Summitsrdquo
The Federal Deputy Minister was clear that in his view the police had sufficient authority
at common law and in statute to secure these conferences Similarly the OPP were of the
view that it was not necessary for the police forces to have any additional police powers
8 SC 1991 c 41 s 101(2) Attached as Appendix 5 is a copy of selected sections of the FMIOA 9 Attached as Appendix 6 is a copy of the May 7 2010 letter10 Attached as Appendix 7 is a copy of the letter received on June 11 2010
10
other than those already conferred by virtue of common law and statute (excluding the
PWPA) in order to secure the interdiction zones for the Summits
On May 12 2010 Chief William Blair of the TPS wrote to the Honourable Rick
Bartolucci Minister of Community Safety and Correctional Services11 stating that a
ldquocornerstonerdquo of the TPS security plan for the G20 Summit would be the establishment of
a security perimeter in an area around the Metro Toronto Convention Centre The
purpose of this security perimeter as explained in the letter was to ldquoensure the safety and
security of those attending the Summit the Summit site itself and people and property
within the area close to the Summit siterdquo Chief Blair indicated that the TPS would rely
upon the authority granted to it pursuant to the common law and if certain conditions are
met the FMIOA12 to establish and control the security perimeter However he believed
that the provisions of the PWPA ldquowould also offer legal support for the extraordinary
security measuresrdquo he believed would be necessary Chief Blair therefore requested ldquothe
Lieutenant Governor in Council to designate the area of or highways within the intended
security perimeter as a public work for the period from June 21 2010 through the end of
the Summit on June 27 2010rdquo A detailed description of the area requested to be
designated as a public work was provided to Minister Bartolucci as well as an aerial
photograph of the area
I am not aware that any organization publicly questioned the inherent police power to
erect fences defining the interdiction zone The Canadian Civil Liberties Association
11 See Appendix 312 This probably is in reference to s 101(4) of the FMIOA which provides the authority for the Minister of Public Safety and Emergency Preparedness to enter into arrangements with the government of a province concerning the responsibilities of members of the RCMP and members of the provincial and municipal police forces with respect to ensuring the security for the proper functioning of an intergovernmental conference
11
(ldquoCCLArdquo) published a document entitled ldquoProtecting civil liberties and human rights at
the G20 statement of concernsrdquo on May 21 201013 In this document the CCLA
expressed concern with the size of the security perimeter ldquoParticularly where there is a
primary fence to ensure safety around conference venues and delegate hotels any further
restrictions on mobility or protest must be fully and carefully justifiedrdquo14 However the
CCLA supported ldquothe overall goal of ensuring that the G20 is conducted in a manner that
is safe for delegates protesters and Toronto residents in generalrdquo15 and noted the
RCMPrsquos authority under the FMIOA There was no doubt expressed by the CCLA
concerning the power of police to erect security fences
By letter dated June 15 201016 Minister Bartolucci wrote to Chief Blair acknowledging
the request and stating in part
I agree that there are various sources of legal authority to support the security perimeter I also recognize the desirability of having additional sources of legal authority to ensure clarity regarding the ability of the Toronto Police Service to take the steps that it will be taking Accordingly I am pleased to inform you that a regulation has been made under the PWPA in response to your request
The Minister informed Chief Blair that O Reg 23310 had been filed with the Registrar
of Regulations and would come into force on June 21 2010 and would be revoked as of
June 28 2010 The area requested by Chief Blair to be designated as a ldquopublic workrdquo
was so designated in O Reg 23310
13 Canadian Civil Liberties Association Protecting civil liberties and human rights at the G20 statement of concerns May 21 2010 online Canadian Civil Liberties Association lthttpcclaorgwordpresswp-contentuploads201005G20-CCLA-Statement-of-Concernspdfgt14 Ibid p 415 Ibid p 316 Attached as Appendix 8 is a copy of the June 15 2010 letter
12
Four days earlier on June 11 2010 Mike McDonell the Assistant Commissioner of the
RCMP sent a letter to Chief Blair17 containing a thorough review of the statutory sources
of the RCMPrsquos duties and powers to secure intergovernmental conferences Assistant
Commissioner McDonell outlined the police authority to fully secure the G8 and G20
Summits
More specifically in relation to the Summits the RCMP will be taking measures to fulfill duties related to the protection of Internationally Protected Persons (IPPrsquos) that befall police in general and the RCMP in specific The official visit of the head of state or high ranking dignitary of a foreign country is an event that frequently engenders a real or apprehended threat to the preservation of peace which demands the adoption of proper and reasonable security measures in and by the host country
Furthermore Canada is a signatory of the United Nations Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons Including Diplomatic Agents In that regard Canada has specifically adopted laws requiring peace officers to protect IPPs as defined in section 2 of the Criminal Code in accordance with its international obligationshellip
Legal authorities also permit the RCMP to collaborate with other police forces such as the OPP in the fulfillment of its duties including in relation to securing the perimeter Such collaboration is essential in light of concurrent mandates of policing partners particularly in relation to the legal duties to preserve the peace and protect life and property
E O Reg 23310
On June 2 2010 Cabinetrsquos Legislation and Regulations Committee passed O Reg
23310 It was signed by the Lieutenant Governor on June 3 2010 and published on June
16 2010 on e-Laws a website maintained by the Government of Ontario not frequently
accessed by the public This website provides access to official copies of Ontariorsquos
statutes and regulations O Reg 23310 came into force on June 21 2010 and was
17 Attached as Appendix 9 is a copy of the June 11 2010 letter
13
revoked on June 28 2010 It was not published in The Ontario Gazette18 until July 3
2010 after it had already been revoked Section 23(2) of Ontariorsquos Legislation Act
200619 provides that a regulation is not effective against a person before the earliest of
when the person has actual notice of it the last instant on the day on which it is published
on the e-Laws website or the last instant of the day on which it is published in the print
version of The Ontario Gazette As a result though the technical requirements for
providing notice of O Reg 23310 were met I have concerns whether adequate notice
was given to the public especially in light of the fact that the regulation was not
published in The Ontario Gazette until it had already been revoked
The regulation set out the area where the security fence was to be erected and designated
that area as a ldquopublic workrdquo which then called into play all the powers provided by the
PWPA
ONTARIO REGULATION 23310
made under the
PUBLIC WORKS PROTECTION ACT
Made June 2 2010Filed June 14 2010
Published on e-Laws June 16 2010Printed in The Ontario Gazette July 3 2010
DESIGNATION OF PUBLIC WORKS
Designation 1 The following are designated as public works for the purposes of the Act 1 Everything described in clause (a) of the definition of ldquopublic workrdquo in section
1 of the Act that is located in the area described in Schedule 1 including without limitation and for greater certainty every sidewalk in that area
2 The places described in paragraphs 1 2 and 3 of Schedule 2
18 The Ontario Gazette contains Ontariorsquos legal notices and regulations19 SO 2006 c 21 Sched F
14
Revocation 2 This Regulation is revoked on June 28 2010
Commencement 3 This Regulation comes into force on the later of June 21 2010 and the day
it is filed SCHEDULE 1
AREA REFERRED TO IN PARAGRAPH 1 OF SECTION 1
The area in the City of Toronto lying within a line drawn as follows
Beginning at the curb at the southeast corner of Blue Jays Way and Front Street West then north to the centre of Front Street West then east along the centre of Front Street West to the east curb of Windsor Street then north along the east curb of Windsor Street to the centre of Wellington Street then east along the centre of Wellington Street to the centre of Bay Street then south along the centre of Bay Street to a point directly opposite the north wall of Union Station then west along the exterior of the north wall of Union Station to the centre of York Street then south along the centre of York Street continuing east of the abutments under the railway overpass and continuing south along the centre of York Street to the centre of Bremner Boulevard then west along the centre of Bremner Boulevard to the east curb of Lower Simcoe Street then south along the east curb of Lower Simcoe Street to the north curb of Lake Shore Boulevard West then west along the north curb of Lake Shore Boulevard West to the south end of the walkway that is located immediately west of the John Street Pumping Station and runs between Lake Shore Boulevard West and the bus parking lot of the Rogers Centre then north along the west edge of that walkway to the bus parking lot of the Rogers Centre then west along the south edge of the bus parking lot of the Rogers Centre to the west edge of the driveway running between the parking lot and Bremner Boulevard then north along the west edge of that driveway to the north curb of Bremner Boulevard then west along the north curb of Bremner Boulevard to the east curb of Navy Wharf Court then north along the east curb of Navy Wharf Court to the southwest point of the building known as 73 Navy Wharf Court then east along the exterior of the south wall of that building then north along the exterior of the east wall of that building to the curb of Blue Jays Way then north along the east curb of Blue Jays Way to the curb at the southeast corner of Blue Jays Way and Front Street West
SCHEDULE 2DESIGNATED PLACES REFERRED TO IN PARAGRAPH 2 OF SECTION 1
1 The area within the area described in Schedule 1 that is within five metres of a line drawn as follows Beginning at the south end of the walkway that is located immediately west of the John Street Pumping Station and runs between Lake Shore Boulevard West and the bus parking lot of the Rogers Centre then north along the west edge of that walkway to the bus parking lot of the Rogers Centre then west along the south edge of the bus parking lot of the Rogers Centre to the west edge of the driveway running between the parking lot and Bremner
15
Boulevard then north along the west edge of that driveway and ending at Bremner Boulevard
2 The area within the area described in Schedule 1 that is within five metres of a line drawn as follows
Beginning at the southwest point of the building known as 73 Navy Wharf Court then east along the exterior of the south wall of that building then north along the exterior of the east wall of that building and ending at the curb of Blue Jays Way
3 The below-grade driveway located between Union Station and Front Street West and running between Bay Street and York Street in the City of Toronto
F Information Given to Public Regarding Security Protocol
Attempts were made to inform the public about the security measures that would be in
place leading up to and throughout the G20 The City of Toronto in consultation with
the ISU produced an information article20 and flyers21 No mention is made in the article
or flyers of the PWPA or O Reg 23310 and the powers given to the police The City of
Toronto also prepared an advertisement which appeared in local newspapers22 The
original version of the advertisement made no reference to the fact that people would be
subject to a search when attempting to access the security perimeter although reference
was made to the requirement to show identification and to have a valid purpose for
entering the restricted area A later version of the advertisement included additional text
advising that anyone requesting access to the security perimeter may be subject to a
search However just as with the article and flyers no specific mention was made of the
PWPA or O Reg 23310
20 A million copies of the newsletter Our Toronto which contained an article entitled ldquoWhat to expect during the G20 ndash June 26 amp 27 2010rdquo were delivered to homes in the City of Toronto21 Approximately 10000 flyers were sent to homes and businesses within the affected area The flyercontained general information about security and the anticipated effects on traffic22 The advertisement appeared in the Toronto Star Toronto Sun and Metroland community papers
16
In the days leading up to and throughout the G20 Summit there was apparently a
misunderstanding on the part of the police regarding a purported ldquofive-metre rulerdquo This
confusion likely emanated from the ldquofive-metresrdquo referenced in Schedule 2 of O Reg
23310 However the purpose of Schedule 2 was to designate as ldquopublic work(s)rdquo three
specific private property locations on which the security fence was to be erected that were
not ldquopublic worksrdquo The remainder of the fence was on public sidewalks and streets
which are ldquopublic worksrdquo To ensure that the fence was located on a ldquopublic workrdquo the
drafters designated the area within five metres of the security fence in these three
locations as a ldquopublic workrdquo23 Unfortunately the wording of Schedule 2 was very
cumbersome and the relationship between the area defined in Schedule 1 and the five-
metre reference in Schedule 2 was difficult to understand
Because of this confusion unfortunately the message was conveyed that the regulation
provided for a five-metres zone outside the entire security fence and that therefore the
PWPA applied to this entire area24 The media reported during the G20 summit that the
police had ldquosweepingrdquo powers pursuant to the PWPA within five-metres outside of the
exterior security fence25 O Reg 23310 did not provide the police such authority
23 Attached as Appendix 10 is a copy of a map showing the three specific areas designated in Schedule 2 of O Reg 2331024 Jennifer Yang ldquoJust being near the G20 security zone can get you arrestedrdquo Toronto Star (25 June 2010) online thestarcom lthttpwwwthestarcomnewsgtatorontog20summitarticle828498--just-being-near-the-g20-security-zone-can-get-you-arrestedgt25 David Rider et al ldquoDalton McGuinty Bill Blair defend quiet boost in arrest powersrdquo Toronto Star (26 June 2010) online thestarcom lthttpwwwthestarcomnewsgtatorontog20summitarticle828974--dalton-mcguinty-bill-blair-defend-quiet-boost-in-arrest-powersgt
17
SECTION 3 COMMENTARY
A Public Policy Considerations
There are some overarching public policy considerations which affect the issues I have
been asked to address in the Terms of Reference
As stated earlier the legislation was the product of emergency World War II concerns
related to the possibility of enemy sabotage of important infrastructures The legislative
debates in September of 1939 were particularly concerned with the provincersquos
hydroelectric facilities However notwithstanding these apparently specific concerns
when drafted the definition of ldquopublic workrdquo is extraordinarily broad and from a policy
standpoint raises questions of overbreadth especially given the ability to designate
almost anything a public work In a mere definition section s 1 of the legislation allows
the Lieutenant Governor in Council to designate ldquoany other building place or workrdquo as a
ldquopublic workrdquo However taken to its logical conclusion an entire city or more could be
designated as a ldquopublic workrdquo The definition of ldquopublic workrdquo includes ldquoany provincial
and any municipal public buildingrdquo but ldquopublic buildingrdquo is not further defined thereby
creating an element of uncertainty as to the specific provincial and municipal buildings
captured by this definition While perhaps extreme measures in times of war require
flexibility in all other circumstances legislation of this nature requires limitations and a
more specialized approach
The expression ldquoprivate armyrdquo was used in the Ontario legislative debate in 1939
Theoretically at least private armies could be created through the use of the ldquoguardrdquo
appointing authority by the many individuals who are authorized to appoint guards
pursuant to the PWPA This authority was apparently in response to the Federal
18
Governmentrsquos refusal to assume through the Defence Department the responsibility of
guarding utilities and industries essential to the war effort While such a result might not
have been contemplated in a parliamentary democracy it is clearly unwise to leave such
a possibility open
Section 3 of the PWPA provides in part that a guard or a peace officer
(a) may require any person entering or attempting to enter any public work or any approach thereto to furnish his or her name and addresshellipand to state the purpose for which he or she desires to enter the public work in writing or otherwise
The primary problem I see with this section is the vagueness of the term ldquoapproach
theretordquo An approach could begin at a considerable distance from the public work
Section 6(b) also provides for the making of regulations ldquodefining the areas that
constitute approaches to public works either generally or with regard to a particular
public workrdquo
In addition s 3(b) of the PWPA provides that a guard or peace officer ldquomay search
without warrant any person entering or attempting to enter a public workrdquo This section
does not permit any person to abandon any attempt to enter a public work in order to
avoid being subjected to a warrantless search Such conduct is adopted by persons who
decide not to enter a secured courthouse in order to avoid a warrantless search
Section 4 provides that for the purposes of the PWPA the statement under oath made by
persons engaged in the operation of a public work ldquoas to the boundaries of the public
work is conclusive evidence thereofrdquo Section 4 should be considered with s 5(1) which
provides that ldquoevery person found upon a public work or any approach thereto without
lawful authority the proof whereof lies on him or her is guilty of an offencehellip(emphasis
19
added)rdquo The provision in s 4 that ldquothe statement under oathhellipis conclusive evidence
thereofrdquo appears to remove from a courtrsquos consideration what could be a legitimate
dispute as to the boundaries of a public work or the approach thereto Furthermore the
apparent reversal of the onus of proof regarding lawful authority to be found in a public
work or an approach found in s 5 is also troublesome from a policy and legal point of
view
Accordingly if utilized to the extreme many government officials could appoint many
private armies to restrict access to many (in fact any) public places where the mere
statement under oath by the private guard of the boundaries of the areas under restricted
access is conclusive proof thereof Such potential for abuse is beyond troubling to say
the least
B Review of other Public Reports
As is evident from the foregoing discussion many issues arise regarding the operation of
the PWPA in todayrsquos context These considerations and others also formed the basis of
concerns raised in public reports which I was asked to review
1 Reports of the Canadian Civil Liberties Association
The CCLA preliminary G20 report26 dealt with most of the police related events that
occurred in Toronto during the G20 conference during the weekend of June 26th and 27th
2010 I will only make reference to a few portions of the report that deal with the Terms
of Reference
26 Canadian Civil Liberties Association A Breach of the Peace ndash A Preliminary Report of Observations During the 2010 G20 Summit June 29 2010 online Canadian Civil Liberties Association lthttpcclaorgwordpresswp-contentuploads201006CCLA-Report-A-Breach-of-the-Peace-Preliminary-report-updated-July-8pdfgt
20
The report of the CCLA called for the repeal or significant amendment to the PWPA ldquoto
meet basic constitutional standardsrdquo27 The CCLA ldquosuggests that the broad police powers
granted under the Act are inconsistent with current Charter requirementsrdquo28
I agree with the observation of the CCLA that the provisions of the PWPA led to a ldquolack
of clarity as to the scope of the search and seizure powersrdquo29 which created many
difficulties and conflicts that probably could have been avoided I would also certainly
agree with a conclusory comment in this preliminary report that ldquoit is the duty of police
officers to act with fairness and equanimity toward all citizens in accordance with the law
of the country The presumption of innocence and the protection against arbitrary arrests
and detention are at the core of a commitment to justicerdquo30
The CCLA in partnership with the National Union of Public Employees organized
public hearings for two days in Toronto and one day in Montreal in November of 2010
which they referred to as a Citizens Inquiry The Citizens Inquiry heard from 63 members
of the public who had witnessed policing incidents or had been detained Several lawyers
and academics also participated in the hearing and offered commentary on the events of
the G20 from a legal or policing perspective including issues related to the PWPA A
report of the hearings titled ldquoG20 Toronto Breach of the Peace Public Hearingsrdquo was
released on February 28 2011 which also referred to the PWPA31
27 Ibid p 2228 Ibid p 929 Ibid p 1230 Ibid p 2131 Canadian Civil Liberties Association and the National Union of Public and General Employees G20 Toronto Breach of the Peace Public Hearings February 2011 online Canadian Civil Liberties Association lthttpcclaorgwordpresswp-contentuploads201102Breach-of-the-Peace-Final-Reportpdfgt
21
2 The Ontario Ombudsman Report
The Ontario Ombudsman commenced an investigation after receiving complaints relating
to a variety of issues concerning the G20 The Marin Report recognized that ldquotypically
international summits attract protests and protests can turn violent and even deadlyrdquo32
The report therefore does not quarrel with the requirement that a high level of security is
required for such events
The report in my view accurately describes the PWPA as ldquounique in Canada in terms of
the breadth of its reach and the powers it confershellipno other Canadian statute defining
lsquopublic worksrsquo contains provisions similar to those found in Ontariorsquos Actrdquo33
32 Ontario Ombudsman report Investigation into The Ministry of Community Safety and Correctional Servicesrsquo Conduct in Relation to Ontario Regulation 23310 under the Public Works Protection Act ldquoCaught in the Actrdquo by Andreacute Marin (Toronto Ombudsman of Ontario December 2010) online Ombudsman of Ontario lthttpwwwombudsmanoncamedia157555g20final1-enpdfgt (ldquoMarin Reportrdquo) at para 733 Ibid at para 97
22
SECTION 4 POWERS OF THE POLICE
Pursuant to the Terms of Reference I have been asked to consider for future purposes
whether the powers given to peace officers and guards under the PWPA are necessary to
protect public works secure intergovernmental conferences or for any other purposes
To answer that question it is necessary to assess whether the current common law and
statutory regime provide the police with sufficient powers to perform these vital services
A Common Law Powers and Powers Pursuant to Police Services Acts
The police have extensive common law powers that can be used in protecting and
securing intergovernmental conferences and in protecting public works It is necessary to
examine those powers in order to assess whether and what if any additional powers are
needed such as those provided by the PWPA
Of particular assistance in this regard is R v Knowlton34 where the Supreme Court of
Canada considered whether the powers possessed by peace officers at common law and
statute in securing an area for the protection of a foreign dignitary were lawful The
Supreme Court of Canada held that in order for the exercise of peace officer powers to be
lawful the powers must satisfy the two step test set out in R v Waterfield35 First the
power must be in furtherance of a lawful duty Traditional common law peace officer
duties include the preservation of the peace and the prevention of crime These common
law police duties amongst others are now statutorily enshrined in s 42(1) of Ontariorsquos
Police Services Act (and other provincial police services acts)36 The second part of the
test requires an evaluation of whether the conduct of the peace officer was ldquojustifiedrdquo To
34 [1974] SCR 443 [ldquoKnowltonrdquo]35 See for example R v Dedman [1985] 2 SCR 236 RSO 1990 c P15
23
do so one applies the standard of what is reasonably necessary in light of the totality of
the circumstances In evaluating whether the conduct of the peace officer was justified it
is important to consider ldquothe duty being performed the extent to which some interference
with individual liberty is necessary in the performance of that duty the importance of the
performance of the duty to the public good the nature of the liberty being interfered with
and the nature and extent of the interferencerdquo37
In Knowlton police in Edmonton cordoned off an area as part of the security
arrangements for the visit of Premier Kosygin of the USSR Premier Kosygin had been
assaulted in Ottawa a few days prior to his visit to Edmonton Knowlton entered the
secured area questioning the power of the peace officer to prevent his entry He was
arrested without a warrant and charged with obstructing a peace officer in the execution
of his duties Knowlton argued that the peace officer did not have the power to prevent
his entry and was not acting in the execution of his duty
The Supreme Court of Canada emphasized the heightened importance of security when
there are visiting foreign dignitaries38
It is notorious and of common knowledge that the official visit of the head of state or high rank dignitary of a foreign country friendly as either may be is an event that frequently engenders a real or apprehended threat to the preservation of peace and that calls therefore for the adoption of proper and reasonable security measures in and by the host countryhellipThe restriction of the right of free access of the public to public streetshellipwas one of the steps--not an unusual one--which police authorities considered and adopted as necessary for the attainment of the purpose aforesaid In my opinion such conduct of the police was clearly falling within the general scope of the duties imposed upon them
37 R v Mann [2004] 3 SCR 59 at 7938 Supra note 34 at 447-448
24
In addressing the first part of the Waterfield test the Court referenced provisions of the
Alberta Police Act and the Criminal Code and concluded that the conduct of the peace
officers fell within the general scope of the duties imposed upon them for example
preservation of the peace and prevention of crime39
According to the principles which for the preservation of peace and prevention of crime underlie the provisions of s 30 amongst others of the Criminal Code these official authorities were not only entitled but in duty bound as peace officers to prevent a renewal of a like criminal assault on the person of Premier Kosygin during his official visit in Canada In this respect they had a specific and binding obligation to take proper and reasonable steps The restriction of the right of free access of the public to public streets at the strategic point mentioned above was one of the steps--not an unusual one--which police authorities considered and adopted as necessary for the attainment of the purpose aforesaid In my opinion such conduct of the police was clearly falling within the general scope of the duties imposed upon them
In analyzing the second step of the Waterfield test the Court concluded that there was no
evidence indicating the police officers resorted to an unjustifiable use of the powers
associated with the duties imposed on them
The Court in Knowlton recognized broad police powers to cordon off areas as part of the
security arrangements involving internationally protected persons In addition the Court
found that the warrantless arrest in that case was not an unjustifiable or unreasonable use
of powers associated with the police duties to preserve the peace order public safety and
to enforce the law and prevent crime Finally the Court found that peace officers were
duty bound ldquoto prevent a renewal of a like criminal assault on the person of Premier
Kosygin during his official visit in Canadardquo40 Furthermore it stated the closing of public
39 Ibid 40 Ibid at 447
25
streets ldquowas one of the steps -- not an unusual one -- which police authorities considered
and adopted as necessaryrdquo41
The Knowlton decision clearly acknowledged that the police had the duty and authority to
establish and enforce a secured area to protect a foreign dignitary In order to carry out
these duties the police may do what is reasonably necessary in light of the totality of the
circumstances
Though Knowlton was decided prior to the enactment of the Canadian Charter of Rights
and Freedoms (the ldquoCharterrdquo) this does not in my view affect the clear statement by the
Supreme Court of Canada regarding the duty of the police under the common law and the
Alberta Police Act to provide this security While the facts of Knowlton were quite
compelling in relation to the obvious need to provide adequate security for Premier
Kosygin the decision is equally important authority regarding the general responsibilities
of the police at common law and statute in relation to the preservation of the peace
B Other Statutory Powers
1 Criminal Code
Some specific powers are provided to peace officers pursuant to the Criminal Code42
Section 31 gives peace officers the power to arrest an individual for breach of the peace
Peace officers can arrest those committing the breach of the peace or those who on
reasonable grounds heshe believe are about to join in or renew the breach of the peace
Peace officers also have powers at their disposal under ss 63-69 of the Criminal Code to
deal with the offences of unlawful assembly and riots
41 Ibid at 447-448 42 RSC 1985 c C-46
26
2 Trespass to Property Act
The Ontario Trespass to Property Act43 is a potential source of police power to arrest
without warrant those who are unlawfully on certain premises or who were recently
unlawfully on the premises and refuse to give their name and address44 This statute
deals with illegal entry into both private and public property by creating the offence of
trespass for those who without the express permission of the occupier enter on to
premises or engage in an activity on the premises when it is prohibited by the statute45
Though this statute is primarily used by private property owners to keep unwanted people
off of their property it has also been invoked by the Speaker of the House46 and by the
City of Toronto47 It must be noted however that using the Trespass to Property Act in
relation to removing individuals from ldquopublicrdquo places may raise Charter issues48
3 Foreign Missions and International Organizations Act
The RCMP as peace officers have the general duty to preserve the peace and prevent
crime and offences as set out in s 18 of the Royal Canadian Mounted Police Act49
Additional duties found in s 17 of the Royal Canadian Mounted Police Regulations
198850 include the protection of ldquointernationally protected personsrdquo as defined in s 2 of
the Criminal Code Internationally protected persons include heads of state and their
43 RSO 1990 c T2144 Ibid ss 9(1) 1045 Ibid s 2(1)46R v Behrens [2004] OJ No 5135 (CJ) The Court held that the issue of the trespass notices fell under the Speakerrsquos parliamentary privilege and were not reviewable even on the basis of a Charter argument47R v Semple [2004] OJ No 2137 (CJ)48 In R v Semple the defendants were charged under the Ontario Trespass to Property Act for entering the grounds of Toronto City Hall after being banned from doing so In the end the Court held that the defendantsrsquo peaceful entry onto the grounds was an expression as per s 2(b) of the Charter Torontorsquos notice under the Act infringed on this freedom and in these circumstances it could not be justified under s 1 of the Charter 49 RSC 1985 c R-1050 SOR88-361
27
family members The RCMPrsquos duty to protect internationally protected persons is also
found in s 6(1) of the Security Offences Act51
In addition Canada is a signatory of the United Nations Convention on the Prevention
and Punishment of Crimes against Internationally Protected Persons including
Diplomatic Agents52 This Convention provides that the Government of Canada must
protect visiting heads of state or government foreign ministers representatives or
officials of a state or any official or other agent of an international organization of an
intergovernmental character and the family members that accompany him or her The
RCMP has the responsibility to carry out these security measures
Pursuant to s 101(1) of the FMIOA ldquoThe Royal Canadian Mounted Police has the
primary responsibility to ensure the security for the proper functioning of any
intergovernmental conference in which two or more states participate that is attended by
persons granted privileges and immunities under this Act and to which an order made or
continued under this Act appliesrdquo
The powers to carry out this mandate are found in s 101(2) of the FMIOA ldquothe Royal
Canadian Mounted Police may take appropriate measures including controlling limiting
or prohibiting access to any area to the extent and in a manner that is reasonable in the
circumstancesrdquo It is noteworthy that the FMIOA has legislated the same powers
provided to the police under common law and statute
In order to trigger the RCMP powers described in s 101 the Governor in Council on the
51 RSC 1985 c S-752 UNGA Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons including Diplomatic Agents 20 February 1977 UN Doc I-15410
28
recommendation of the Minister of Foreign Affairs and pursuant to s 5 of the FMIOA
made the G8 Summit Privileges and Immunities Order 201053 on December 10 2009
This order was repealed and a subsequent order54 was made on January 13 2010 A
similar order55 for the G20 Summit was made on March 11 201056
Therefore during the G20 the RCMP had the specific statutory power to limit or
prohibit access to any area and to any extent as long as the measures were appropriate
and done in a manner that was reasonable in the circumstances ldquoThe RCMP may secure
the perimeter of the security zone on land with fencing and restrict access to this zone
through the use of checkpoints and other measuresrdquo57
Though not invoked during the G20 s 101(4) of the FMIOA provides that arrangements
can be entered into with a province concerning the responsibilities of members of the
RCMP and members of the provincial and municipal police forces with respect to
ensuring the security for the proper functioning of an intergovernmental conference No
information was provided to me as to why such an arrangement was not entered into for
the G20
These intergovernmental security provisions of the FMIOA were enacted just prior to the
G8 being held in Kananaskis Alberta in 2002 In light of violent protests at international
events and the 911 terrorist attacks in the United States the Federal Government
53 SOR2009-33654 SOR2010-1355 SOR2010-6256 Supra note 17 ldquoUpon such an Order being made the RCMP in co-operation and collaboration with other police forces becomes impressed with the primary responsibility of ensuring not only the protection of the IPPs but also ensuring lsquosecurity for the proper functioningrsquo of the intergovernmental conference To that end the FMIOA provides that the lsquoappropriate measures including controlling limiting or prohibiting access to any area to the extent and in a manner that is reasonable in the circumstancesrsquo may be takenrdquo57 Ibid
29
considered it timely ldquoto clarify in statute the present common law authority for police to
provide security and protection for high profile international eventsrdquo58 At such events it
was intended that ldquothe RCMP is the lead to make sure that security is providedrdquo59
Given that it was clearly the intention of the Federal Government to have the RCMP as
the lead police force at these international events consideration should be given to
expand the use of the FMIOA to cover all large scale international events such as the
Olympics the Pan American Games and international trade fairs as these events are
routinely attended by heads of state and senior government officials Most recently
Vancouver held the 2010 Olympic and Paralympic Winter Games60 Though federal and
municipal legislation were passed to assist in securing the Games expansion and
application of the FMIOA would have been a better approach The RCMP as the national
police force ought to be in charge pursuant to their authority under the FMIOA
4 Emergency Legislation
Through my consultations with the parties listed in Appendix 2 I heard that while we are
not in a time of war as in 1939 when the PWPA was enacted we live in an age of
international and local terrorism threats Our democratic society must be vigilant in
58 Canada House of Commons Debates 37th Parl 1st Sess No 93 (5 October 2001) at 100059 Canada House of Commons Standing Committee on Public Safety and National Security 40th Parl 3rd
Sess Evidence (25 October 2010)60 In anticipation of this event the Governor General in Council on the recommendation of the Minister of Transport pursuant to the Aeronautics Act (RSC 1985 c A-2) and the Canadian Air Transport Security Authority Act (SC 2002 c 9 s 2) passed the Vancouver 2010 Aviation Security Regulations (SOR2009-298) The purpose of the regulations was to enhance aviation security during the Games The Regulation provided for extra security and extra authorized means to conduct screenings In addition the Vancouver City Council passed the very lengthy By-law No 9962 known as the ldquoVancouver 2010 Olympic and Paralympic Winter Games By-Lawrdquo Specific security measures to be employed at a city live site (described thoroughly in a Schedule to the By-Law) that were enabled by this By-Law included The installation and monitoring of airport style and other security measures including magnetometers and X-ray machines the installation and monitoring of closed circuit television cameras the searching of any person who wished to enter on to a city live site and any bag luggage or other container carried by such person and the prohibiting of access to or removal from a city live site any person who refused to submit to a search
30
maintaining a proper level of security while recognizing that democratic values and
security issues can conflict where public order is at issue It is important to highlight that
provincial legislation exists dealing with both terrorism threats and emergency situations
I have been informed that federal and provincial counter-terrorism plans exist that
address preventing and responding to acts of terrorism
The Police Services Act regulations mandate police forces to establish procedures
consistent with federal and provincial counter-terrorism plans61 and to have policies with
respect to counter-terrorism62 In addition the Emergency Management and Civil
Protection Act allows for orders to be made in situations specifically designated an
ldquoemergencyrdquo63 by the Lieutenant Governor in Council or the Premier that regulate or
prohibit travel and movement to from or within any specified area64 Therefore the
PWPA is not needed to deal with these emergency situations as specific more recent
emergency legislation is in place for that very purpose
C Gaps in Canadian Police Powers
The Ministry of Community Safety and Correctional Services provided me with an
interesting article published in 2010 entitled ldquoThe Gap in Canadian Police Powers
61 Adequacy and Effectiveness of Police Services O Reg 399 s 2862 Ibid s 2963 Section 1 of the Emergency Management and Civil Protection Act defines an ldquoemergencyrdquo as ldquoemergencyrdquo means a situation or an impending situation that constitutes a danger of major proportions that could result in serious harm to persons or substantial damage to property and that is caused by the forces of nature a disease or other health risk an accident or an act whether intentional or otherwise (ldquosituation drsquourgencerdquo)64 RSO 1990 c E9 s 702(4)
31
Canada needs lsquoPublic Order Policingrsquo Legislationrdquo and co-authored by Wesley Pue and
Robert Diab65
This article was prompted by the debate over the cost nature and extent of security to be
employed at the Vancouver 2010 Winter Olympics The authors criticized the fact that
policing authorities in Canada ldquolack specific statutory authorization to take measures
commonly thought necessary to their missionrdquo66 These measures included security
fences in public areas designated protest areas restricted access to public space police
surveillance and searches without cause
The authors recognize that such powers may be necessary but note that ldquono legislature
has ever expressly conferred such powers on policing authorities outside the context of
international intergovernmental conferences Nor does the common law accord such
powers to state officials on its ownrdquo67 I respectfully disagree with this latter statement
It is my view the police have powers pursuant to the common law and statute as I have
discussed in the preceding section
The authors referred to R v Knowlton68 which I have previously discussed While the
authors give Knowlton a very narrow interpretation stating that ldquoits binding principle is a
good deal narrower than the words taken out of context might suggestrdquo69 I however am
of the view that the decision supports the proposition that police have a broad range of
65 Wesley Pue and Robert Diab ldquoThe Gap In Canadian Police Powers Canada Needs lsquoPublic Order Policingrsquo Legislationrdquo (2010) 28 Windsor Rev Legal Soc Issues 87 Wesley Pue is a professor of legal history at the University of British Columbia and Robert Diab is a PhD candidate at the UBC Faculty of Law66 Ibid p 8867 Ibid68 Supra note 3469 Supra note 65 p 92
32
responsibilities with deep historical roots in the common law and codified in statute a
position shared by the Federal Government when it introduced amendments to the
FMIOA The actions of the police in Knowlton were necessarily incidental to their
common law police duties and powers
The authors conclude that this ldquoauthority of police to create zones of exclusion either as
an incident of the general and ancient duties of constableshelliphas never been established in
the courtsrdquo70 I am of the view however that the role of the police in establishing
security zones relating to a crime a serious accident or other emergency is a routine and
well-accepted use of police powers pursuant to their common law and statutory duties I
am not suggesting that this common law authority permits the police to establish security
zones ldquofor the proper functioning of any intergovernmental conference in which two or
more states participaterdquo71 larger than necessary to fulfill their purpose The FMIOA as
amended in 2002 provides the RCMP with ldquoprimary responsibility to ensure the security
for the proper functioning of the intergovernmental conferencerdquo72 It is interesting
however that when the Federal Government was enacting this specific authority the
legislative debates indicated that the government was merely clarifying ldquoin statute the
present common law authority for police to provide security and protection for high
profile international eventsrdquo73
Security perimeters are routinely erected by police in the context of the commission of a
crime motor vehicle and other accidents as well as the Santa Claus parade and other
70 Ibid p 9671 Supra note 8 s 101(1)72 Ibid73 Supra note 58
33
parades It would in my view be quite impractical and unnecessary to legislate an
extensive code of police powers given their common law and statutory responsibilities to
generally maintain public order It is not advisable in my opinion to be prescriptive in
any way regarding what actions the police can take since they must assess what the
situation warrants while at the same time considering individual rights and freedoms
The details of any police response to an emergency must be tailored to the exigencies
related to the situation
The police clearly have common law and statutory authority to conduct warrantless
searches in specific situations (ldquoin exigent circumstancesrdquo)74 However when
warrantless searches must be carried out on a regular routine basis the police are acting
more like full time security guards and there should be specific statutory authority
provided to give such powers
I certainly accept the general proposition the authors assert that the mobility rights of
citizens should not be unreasonably or unfairly dealt with However one only need be
aware of the massive amount of construction taking place on the streets of Toronto as this
Report is being written to appreciate that it is not always reasonable to expect that ldquothe
rights of businesses homeowners and ordinary citizens to go about their routine
activities without interruptionrdquo75 will go unhindered While generally desirable it cannot
be legally guaranteed At the same time the authors do concede that ldquoimportant as they
74 Supra note 42 s 4871175 Supra note 65 p 89
34
are the rights of assembly movement and protest are not unqualified They can ndash and
should ndash be balanced against other important public needsrdquo76
In my view public policing at times requires innovation as it often benefits from
creative problem solving If police abuse their common law powers related to ldquopublic
order policingrdquo they are accountable to a multiplicity of authorities and the rule of law
most particularly the Charter The legal rights outlined in the Charter such as ldquothe
principles of fundamental justicerdquo77 security ldquoagainst unreasonable search and seizurerdquo78
and ldquothe right not to be arbitrarily detained or imprisonedrdquo79 are described very
generally However they were chosen deliberately as it was recognized that in each case
there is an inherent tension between imposing security measures and fundamental rights
and freedoms Determining which is paramount will be based on the facts of each case
76 Ibid p 9177 Canadian Charter of Rights and Freedoms s 7 Part I of the Constitution Act 1982 being Schedule B to the Canada Act 1982 (UK) 1982 c 1178 Ibid s 879 Ibid s 9
35
SECTION 5 LEGAL ANALYSIS OF THE PUBLIC WORKS PROTECTION ACT
A Legal Analysis of the Legislation
Many stakeholders have questioned the constitutional validity of the PWPA and O Reg
23310 The Ontario Ombudsman seriously questioned whether O Reg 23310 could
pass ldquoconstitutional musterrdquo80 The CCLA suggested that the broad police powers
granted under the PWPA were inconsistent with the Charter81
To the same effect were comments made by Premier Dalton McGuinty who described
the PWPA as ldquoan archaic law that was used to undermine Torontoniansrsquo civil rights
during the G20rdquo82 He elaborated83
The issue is whether itrsquos appropriate given our present-day values and given an old law which I am confident doesnrsquot strike the balance that you and I would want today in terms of public safety and individual freedom of expressionhellipWhen you start talking about civil rights individual freedoms yoursquore talking about those things that in fact define us as a free and democratic societyhellipItrsquos something that is real and meaningful and important to all of us
The Terms of Reference for this Review do not require that I conduct a constitutional
analysis of the PWPA I have however been asked to consider areas for reform and if
appropriate make specific recommendations for amendment or repeal This does require
that I therefore consider whether the legislation may be vulnerable to constitutional
challenge
Section 2(b) of the Charter guarantees everyone the fundamental freedom of expression
The definition of ldquoexpressionrdquo has been interpreted broadly ldquoActivity is expressive if it
80 Supra note 32 at para 23381 Supra note 26 p 982 Robert Benzie and Rob Ferguson ldquoMcGuinty shifts focus to fixing G20 lawrdquo Toronto Star (10 December 2010) online thestarcom lthttpwwwthestarcomnewscanadaarticle905436--mcguinty-shifts-focus-to-fixing-g20-lawgt 83 Ibid
36
attempts to convey meaningrdquo84 While freedom of expression is not absolute there is
very little that is not considered expression However expression that advocates violence
is not protected under s 2(b)85
The Supreme Court of Canada in Committee for the Commonwealth of Canada v
Canada held that s 2(b) ldquodoes not encompass the right to use any and all government
property for purposes of disseminating onersquos views on public matters but I have no doubt
that it does include the right to use for that purpose streets and parks which are dedicated
to the use of the public subject no doubt to reasonable regulation to ensure their
continued use for the purposes to which they are dedicatedrdquo86 It seems clear that
protesting in public streets is a form of expression protected by s 2(b) Protesting at an
intergovernmental conference is clearly expressive in nature
In challenges alleging that a statute contravenes s 2(b) of the Charter a court would
examine whether the purpose or effect of a law contravenes section 2(b)87 There is no
reason to suggest that the purpose of the PWPA was to infringe the freedom of
expression The purpose of the PWPA is to protect important public infrastructures A
court would then have to consider whether the effect of the PWPA may have resulted in
an infringement of freedom of expression
O Reg 23310 defined significant portions of downtown Toronto as a ldquopublic workrdquo
Section 3(c) of the PWPA allows peace officers to refuse entry into public works which
therefore limits the areas in which protesters could express themselves By creating the
84 Irwin Toy Ltd v Queacutebec (Attorney General) [1989] 1 SCR 927 at 96885 Ibid at 97086 [1991] 1 SCR 139 at 165-16687 Peter Hogg Constitutional Law of Canada loose-leaf (consulted on 7 January 2011) 5th ed (Toronto Thomson Reuters Canada Limited 2007) at 43-6
37
relatively large security perimeter designated by the regulation individuals may allege
they were not permitted to communicate directly with those they were protesting against
Furthermore individuals could not communicate in public places such as public streets
where the right to freedom of expression has previously been found to exist88
Commissioner Ted Hughes completed an interim report following a public hearing into
the complaints regarding events that took place with respect to the Asia Pacific Economic
Cooperation (APEC) Conference in Vancouver British Columbia in November 1997
Commissioner Hughes recommended that generous opportunity should be afforded to
peaceful protesters to be seen in their protest activities by guests at the event89
Section 7 of the Charter provides that ldquoEveryone has the right to life liberty and security
of the person and the right not to be deprived thereof except in accordance with the
principles of fundamental justicerdquo The PWPA raises issues regarding the liberty and
security of the person in providing for warrantless searches and stopping for
identification Furthermore vague laws offend two fundamental values of our legal
system90 Firstly individuals are not provided with sufficient guidance as to what
behaviour a law prohibits Secondly those in charge of enforcing the law are not
provided with clear guidance as to how to enforce it A vague law can lead to inconsistent
and arbitrary enforcement91
88 Supra note 86 89 Canada Commission for Public Complaints Against the RCMP APEC ndash Commission Interim Report (31 July 2001) at s 3111 (Commissioner Ted Hughes QC) online Commission for Public Complaints Against the RCMP lthttpwwwcpc-cppgccaprrrepphrapecapec-31-engaspxgt90 Supra note 87 at 47-60 91 ldquoA vague provision does not provide an adequate basis for legal debate that is for reaching a conclusion as to its meaning by reasoned analysis applying legal criteria It does not sufficiently delineate any area of risk and thus can provide neither fair notice to the citizen nor a limitation of enforcement discretion Such
38
As described by Professor Hogg92
The requirement that any limit on rights be prescribed by law reflects two values that are basic to constitutionalism or the rule of law First in order to preclude arbitrary and discriminatory action by government officials all official action in derogation of rights must be authorized by law Secondly citizens must have reasonable opportunity to know what is prohibited so that they can act accordingly Both these values are satisfied by a law that fulfils two requirements (1) the law must be adequately accessible to the public and (2) the law must be formulated with sufficient precision to enable people to regulate their conduct by it and to provide guidance to those who apply the law
As I stated earlier the phrase ldquoany approach theretordquo contained in s 3(a) of the PWPA is
potentially vague No criteria are provided to assist in determining when one is on ldquoany
approach theretordquo A phrase such as ldquoany approach theretordquo is subject to many potential
interpretations It is arguable that this language does not provide reasonable guidance for
individuals to obey the law and for the law to be consistently enforced
Section 8 of the Charter provides that ldquoEveryone has the right to be secure against
unreasonable search or seizurerdquo A warrantless search or seizure is only reasonable if the
search was authorized by law the law itself is reasonable and the manner in which the
search carried out was reasonable93 The fact that no reasonable or probable suspicions
are needed to carry out a search pursuant to s 3(b) of the PWPA raises some issues The
only prerequisite to such a search is that the person or vehicle being subjected to a search
is entering or attempting to enter a public work
a provision is not intelligible to use the terminology of previous decisions of this Court and therefore it fails to give sufficient indications that could fuel a legal debaterdquo (R v Nova Scotia Pharmaceutical Society [1992] 2 SCR 606 at 639-640) 92 Supra note 87 at 38-1293 R v Nolet [2010] SCJ No 24 at para 21
39
Whether the PWPArsquos s 3(b) authority to undertake warrantless searches is ldquoreasonablerdquo
depends on the reasonableness of the impact on the subject of the search ldquoThe
individuals reasonable expectation of privacy must of course be balanced against the
public interest in effective law enforcementrdquo94 It is harder to justify a warrantless search
where the reasonable expectation of privacy is higher For example interference with
bodily integrity will raise the standard of reasonableness Conversely in situations where
people expect to have a lower level of privacy the standard to prove reasonableness is
lower
One rightfully has some expectation of privacy when in public but it does not rise to the
level of privacy that one expects in onersquos home The expectation of privacy further
decreases when one attempts to enter a ldquopublic workrdquo especially in the context of a
secured barrier to an intergovernmental conference
Section 9 of the Charter provides that ldquoEveryone has the right not to be arbitrarily
detained or imprisonedrdquo95 Under s 3(a) of the PWPA a person entering or attempting to
enter or approach a public work must provide his or her name and address and state the
purpose for which he or she desires to enter the public work In order for a guard or
peace officer to carry out this duty the guard or peace officer may ldquostoprdquo the person from
further approaching or entering the public work and the person is not permitted under the
statute to decide not to enter By so doing it is arguable the guard or peace officer has
assumed control over the movement of the individual by a demand or direction The
94 R v Rao [1984] OJ No 3180 at para 79 (CA)95 ldquoDetention under s 9hellipof the Charter refers to a suspension of the individualrsquos liberty interest by a significant physical or psychological restraint Psychological detention is established either where the individual has a legal obligation to comply with the restrictive request or demand or a reasonable person would conclude by reason of the state conduct that he or she had no choice but to complyrdquo (R v Grant [2009] SCJ No 32 at para 44)
40
PWPA provides for a significant legal consequence if the demand or direction is not
followed since ldquoEvery person who neglects or refuses to comply with a request or
direction made under this Act by a guard or peace officer and every person found upon a
public work or any approach thereto without lawful authority the proof whereof lies on
him or her is guilty of an offence and on conviction is liable to a fine of not more than
$500 or to imprisonment for a term of not more than two months or to bothrdquo96
Pursuant to s 3(b) of the PWPA a guard or peace officer may search any person entering
or attempting to enter a public work These searches would necessitate the detention of a
person If a guard or peace officer performs such a search he or she has taken control
over the movement of the person by a demand or direction The same serious legal
consequence results from failing to obey this demand or direction as that which results
from failing to obey the demand or direction pursuant to s 3(a) of the PWPA As a
result ldquodetentionsrdquo could occur pursuant to both s 3(a) and s 3(b) of the PWPA
The question that would need to be addressed in any challenge to the PWPA is whether
the detentions permitted by the PWPA are arbitrary in nature The use of the term ldquoany
approach theretordquo is vague and imprecise A person could be deemed to be on ldquoany
approach theretordquo a great distance from the entrance of a public work and their detention
might very well be arbitrary In addition the fact that the guards and peace officers
determine the boundaries of the ldquoapproachesrdquo which cannot be contested seems
arbitrary as well as who they chose to search
96 It should be noted that not all communications with state authorities and police officers will amount to a detention The question is whether a person may reasonably believe that he or she is free to refuse to comply
41
Section 11(d) of the Charter provides that ldquoAny person charged with an offence has the
right to be presumed innocent until proven guilty according to law in a fair and public
hearing by an independent and impartial tribunalrdquo This requires that the Crown have the
burden of proving the guilt of an individual charged with an offence97 Provisions that
place the burden on the accused to disprove on the balance of probabilities an essential
element of an offence raises s 11(d) concerns because convictions would be possible
even if reasonable doubt existed98 The presumption of innocence is not only infringed
upon by a requirement that an accused disprove an essential element of an offence but
also any requirement on an accused to prove a fact on the balance of probabilities to
avoid conviction
Section 5(1) of the PWPA states that ldquoEvery person who neglects or refuses to comply
with a request or direction made under this Act by a guard or peace officer and every
person found upon a public work or any approach thereto without lawful authority the
proof whereof lies on him or her is guilty of an offence and on conviction is liable to a
fine of not more than $500 or to imprisonment for a term of not more than two months or
to bothrdquo For the offence of being found upon a public work or on any approach to a
public work without lawful authority the burden of proof has been ldquoshiftedrdquo from the
Crown to the accused to prove lawful authority
As the foregoing analysis reveals there are certainly many concerns that arise when one
places the PWPA under the lens of the Charter However the rights and freedoms
provided by the Charter are not absolute They are ldquosubject only to such reasonable
97 R v Oakes [1986] 1 SCR 10398 Ibid at 132
42
limits prescribed by law as can be demonstrably justified in a free and democratic
societyrdquo99
In assessing whether a law which infringes the Charter is saved by s 1 a court examines
both the object of the law and the measures taken to achieve that objective A lawrsquos
objective achieves the status of being sufficiently important to justify overriding a
Charter right only when it is consistent with the values of a free and democratic society
The objective must relate to pressing and substantial concerns and not concerns that are
trivial and must be focussed on ldquothe realization of collective goals of fundamental
importancerdquo100 The measures adopted must be ldquorationally connectedrdquo to the objective of
the law101 The measures ldquoshould impair lsquoas little as possiblersquo the right or freedom in
questionrdquo102 Furthermore there must be ldquoa proportionality between the effects of the
measures which are responsible for limiting the Charter right or freedom and the
objective which has been identified as of lsquosufficient importancersquordquo103
An issue that may affect whether the potential limitation on rights and freedoms of the
PWPA and O Reg 23310 were ldquoprescribed by lawrdquo is whether the regulation was
adequately accessible to the public The Ontario Ombudsman the CCLA and the Ontario
Bar Association (ldquoOBArdquo) all noted a lack of notice regarding O Reg 23310 and its
effects prior to and during the G20 While the text of the regulation was available prior
99 Charter s 1 The Superior Court of Quebec decision of Tremblay v Queacutebec (Attorney General) [2001] JQ No 1504 (CS) involved an interim injunction brought by an applicant who was denied entry into the secured perimeter during the 2001 Summit of the Americas in Queacutebec City The applicant sought an injunction to either eliminate the security barrier or to be given a pass to let him within the secured perimeter Even though the Court held that the erection of the security zone violated the applicantrsquos right to freedom of expression and peaceful assembly The court held that the infringement was ldquodemonstrably justified in a free and democratic societyrdquo100 Supra note 97 at 136101 Ibid at 139102 Ibid103 Ibid
43
to the G20 it was only available on a website not frequently accessed by the public
Since O Reg 23310 was not published in The Ontario Gazette until after it was
revoked it may be that the regulation was not adequately accessible to the public
Reverse onus offences have been found to be ldquorationally connectedrdquo when there is plainly
a rational connection between the proven fact and the fact to be presumed Reverse
onuses have also been upheld when the burden placed on the Crown would be virtually
impossible to meet (such as proving sanity)104 Even if the accused only has the burden
of disproving the fact that heshe did not have lawful authority to be in a public work or
on an approach thereto there may not be a rational connection between the proven fact
and the fact to be presumed
The history of threats and violence at previous intergovernmental conferences
demonstrated that the protection of G20 participants was a pressing and substantial
concern However given the broadness of the PWPA every exercise of it raises the
potential for Charter scrutiny
Recommendation
Given the public policy considerations I have raised regarding the PWPA and Charter
concerns that could arise I recommend that the PWPA be repealed after the Province has
considered potential policy and security gaps as a result of its repeal
B Other uses of the Public Works Protection Act
It appears from my consultations with stakeholder groups that if the PWPA is repealed
104 R v Chaulk [1990] 3 SCR 1303 at 1340
44
there are two areas which may require legislation to provide specific peace officer
powers These two areas are court security and the protection of nuclear power facilities
and other power generating infrastructures
1 Court Security
During my decade as Ontariorsquos Attorney General (1975 to 1985) there were three
murders in provincial courthouses as well as many threats to members of courthouse staff
and others As violent acts in courthouses can be anticipated courtroom security is often
required
Individuals are compelled to go to court for a variety of reasons such as appearing as an
accused as a witness or for jury duty To provide protection to those who work there or
are compelled to attend an adequate level of court security may require a search without
warrant of each and every individual who seeks to enter a courthouse It is not reasonable
to require prior judicial authorization for each search that takes place
The courts have considered the constitutionality of these provisions of the PWPA in
conjunction with section 137 of the Ontario Police Services Act in the context of court
security
Section 137 of the Ontario Police Services Act imposes a responsibility on municipal
police services boards to secure the premises where court proceedings are conducted and
includes
1 Ensuring the security of judges and of persons taking part in or attending proceedings
45
2 During the hours when judges and members of the public are normally present ensuring the security of the premises
3 Ensuring the secure custody of persons in custody who are on or about the premises including persons taken into custody at proceedings
4 Determining appropriate levels of security for the purposes of paragraphs 1 2 and 3
In R v Campanella105 Ms Campanella was attending the John Sopinka Courthouse in
Hamilton At the courthouse there were signs posted stating that those who entered
would be searched for weapons When Ms Campanellarsquos bag was searched marijuana
was found and she was charged with the possession of marijuana She argued that her s
8 Charter protection against unreasonable search and seizure had been violated and the
marijuana discovered during the search should therefore be excluded as evidence The
trial judge and the summary convictions appeal court rejected the section 8 Charter
argument and the appellant appealed to the Ontario Court of Appeal
The Ontario Court of Appeal agreed that ldquogiven the importance of the government
objective and the context in which these searches take place it is reasonable to authorize
warrantless searches of those entering courthouse facilitiesrdquo106 The Court stated ldquothe
only effective way to diminish the risk in a large courthouse is to subject everyone
without prior security clearance to some kind of inspection I can see no other feasible
means of achieving the aimrdquo107
The Court also pointed out the concern relating to the erosion of the benefits and
105 [2002] OJ No 5104 (SCJ) affrsquod [2005] OJ No 1345 (CA) [ldquoCampanellardquo]106 R v Campanella [2005] OJ No 1345 at para 17 (CA)107 Ibid at para 19
46
protections conferred by s 8 of the Charter108
I am sensitive to the concern that we should not erode the benefits and protections of s 8 by gradually sanctioning ever-greater intrusions into privacy because of unfounded fears We should not lightly accept that searches in public places are justified solely because people have become used to them and expect them However the record in this case establishes the justification for the kinds of searches carried out in this case
Ultimately the appeal was dismissed and s 137 of the Police Services Act and s 3(b) of
the PWPA) were held to comply with s 8 of the Charter109
In its consultations with me the OBA similarly stated that the existing nature of court
security is necessary and is generally ldquowell toleratedrdquo At the same time however it
submits that the security regime should not be ldquoshoehornedrdquo into the PWPA regime and
that it would be preferable to provide a legislative framework tailored for the specific
security requirements While the PWPA has been relied upon as support for the exercise
of powers by the police in providing court security the OBA submits that the PWPArsquos
ldquosingle security schemerdquo which declares something a ldquopublic workrdquo is an ldquoawkward
blunt instrument in a world where more specialized tools are necessaryrdquo When
warrantless searches are being done on a routine basis it is advisable to have specific
legislation providing peace officers with such power
Recommendation
Court security legislation is currently in place in many jurisdictions across Canada and
contain provisions that permit warrantless searches of persons wanting to access a
108 Ibid at para 25109 The Court in R v SS [2005] OJ No 5002 (SCJ) agreed with the findings and rationale of the Court of Appeal in Campanella
47
courthouse The constitutional validity of such legislation in Manitoba was upheld by that
provincersquos highest court110
Given the ongoing need for warrantless searches at courthouses the Province of Ontario
should consider specific court security legislation in Ontario to support the security
measures in our courthouses if the PWPA is to be repealed taking into consideration the
responsibilities of the municipal police services boards provided in s 137 of the Police
Services Act This legislation should only be passed after proper notice consultation and
legislative debate
2 Power Generating Infrastructures
It is clear from the submissions that I received from representatives of OPG and the
Canadian Nuclear Safety Commission (ldquoCNSCrdquo) that the PWPA currently plays a role in
providing security officers with the powers to secure power generating infrastructures
including the ability to carry firearms and the ability to stop and require identification
from those in proximity to those nuclear plants
Security is of the utmost importance in protecting a nuclear power plant Members of the
public do not need to access a nuclear or similar power facility unless employed at the
facility or carrying out work for the facility111
The security of areas within nuclear power plants is governed by the Nuclear Security
110 R v Lindsay [2004] MJ No 380 (CA) 111 Though the discussion focuses on nuclear power plants I have been informed that other power generating infrastructures use the PWPA to designate their security officers as guards As a result if the PWPA is repealed it will be necessary to broaden the consultations in relation to these other power generating infrastructures
48
Regulations112 Every nuclear power plant must be located within a ldquoprotected areardquo113
This protected area is the area within a fenced perimeter which is alarmed and
continually patrolled This area must be equipped with devices that employ two
independent systems to detect intrusion into the area114 The Nuclear Security
Regulations also provide detailed specifications for the barrier which must enclose the
protected area115 In addition licensees must ldquoidentify all vital areas and implement
physical protection measures ndash including access control and measures designed to delay
unauthorized accessrdquo116
The Nuclear Security Regulations also provide detailed provisions regarding entry into
protected areas No person can ldquoenter a protected area without physical proof of the
recorded authorization of the licenseerdquo117 Further to this on entry into a protected area
ldquothat personrsquos identity shall be verified by two separate personnel identity verification
systems one of which is an access card reader and the other of which is a biometric
personnel identity verification devicerdquo118 Licensees must also ldquoensure that vehicle
portals are used for the entry and exit of land vehicles into and from a protected areardquo119
Physical protection measures are also required to reduce the chance of a forced land
vehicle entry into a protected area120
The power to conduct searches upon entry to a protected area is also provided by the
112 SOR2000-209 113 Ibid s 8114 Ibid s 11(a)(i)115 Ibid s 9116 Ibid s 141117 Ibid s 17(1)118 Ibid s 171119 Ibid s 91(1)120 Ibid s 91(4)
49
Nuclear Security Regulations Signs must be posted that are visible to people about to
enter the protected area stating that they must allow a nuclear security officer (ldquoNSOrdquo) to
ldquosearch them and everything in their possession including any land vehicle for weapons
and explosive substancesrdquo121 In addition when leaving the protected area people must
allow NSOs to ldquosearch them and everything in their possession including any land
vehicle for Category I II or III nuclear materialrdquo122 People are not permitted to enter or
leave a protected area unless these searches are carried out123 The Nuclear Security
Regulations provide for the method of search including ldquoa hand-held scanner a walk-
through scanner or any similar devicerdquo124 In addition if an NSO determines it
necessary a frisk search can be carried out by a person of the same sex125
I have been informed that the area outside of but adjacent to the ldquoprotected areardquo is
referred to as the ldquocontrolled areardquo This area includes roadways and waterways within
the nuclear facilityrsquos property boundaries adjacent to or in close proximity to the nuclear
power plantrsquos protected area and may be generally accessible to the public
As a result of the September 11 2001 terrorist attacks the Nuclear Security Regulations
were amended to require that high security nuclear facilities maintain an on-site armed
Nuclear Response Force (ldquoNRFrdquo)126 The NRF is composed of specialized NSOs
Section 32 of the Nuclear Security Regulations requires the NRF to be capable of making
an effective intervention taking into account the threat
121 Ibid s 27(1)(a)122 Ibid s 27(1)(b)123 Ibid s 27(2)124 Ibid s 27(5)(a)125 Ibid s 27(5)(b)126 Ibid s 32
50
Members of the NRF are mandated by the Nuclear Security Regulations to be ldquotrained in
the use of firearms authorized to carry firearms in Canada and qualified to use themrdquo127
However to satisfy this requirement the NRF resorts to the PWPA since the federal
regulations do not authorize the NRF to carry firearms without a licence However
under s 2(1) of the PWPA NSOs are designated as ldquoguardsrdquo with the powers of a peace
officer most significantly to carry and use firearms without having to be licensed128
Such a designation also enables the OPG to acquire and dispose of firearms
In the consultations I had with the OPG and the CNSC they advised me that NSOs
receive training equivalent to Canadian police standards and that NRF officers receive
training equivalent to federal and provincial police tactical team requirements
Another aspect of the PWPA used to secure nuclear power plants relates to powers
exercised by NSOs in ldquocontrolled areasrdquo The federal regulations do not provide the
NSOs with any power to demand identification within this area However pursuant to
the PWPA as appointed ldquoguardsrdquo the NSOs have the power to demand identity
verification in the controlled area They also have the authority to arrest anyone who
obstructs NSOs in the performance of their duties under the PWPA
In addition to using the PWPA to secure the controlled areas I have been advised by the
OPG that NSOs use powers pursuant to the PWPA to secure areas within 100 metres of a
nuclear facilityrsquos property line immediately adjacent to the controlled area These powers
are exercised under the broad language of the PWPA regarding ldquoapproaches to public
127 Ibid s 1 (on-site nuclear response force definition)128 Section 11707 of the Criminal Code exempts peace officers from licensing requirements for possessing firearms and other prohibited and restricted weapons
51
worksrdquo This is an illustration of the problem with the vagueness of this language in the
legislation As these powers are exercised on public land they could be challenged as a
potential infringement on individual rights and freedoms However I have been advised
that there have been no such incidents to date The need to ensure the security of these
facilities must be taken into the balance
NSOs must be able to monitor and control access to the controlled areas and areas close
to a nuclear power plantrsquos property line This provides for a more secure perimeter
around these facilities They need authority to challenge individuals acting in a suspicious
manner or conducting surveillance of nuclear facilities The OPG has informed me that
areas outside a nuclear facilityrsquos property line immediately adjacent to the controlled
area are still close enough to take advantage of the short distance to conduct intelligence
using high-powered surveillance equipment These nuclear power plants are not located
on isolated islands and are therefore vulnerable Both the Pickering Nuclear Generating
Station and the Darlington Nuclear Generating Station operate within major urban areas
being 30 km and 60 km east of downtown Toronto respectively I am advised that
previous events such as ldquoThe Toronto 18rdquo129 have shown that those intent on targeting
vital infrastructure such as power generating facilities often use reconnaissance and
intelligence gathering as precursor tactics
Recommendation
If the PWPA is to be repealed it is imperative that those who secure our nuclear and
power generating facilities be given the requisite specific legislative powers to do so
129 See for example ldquoLast 2 Toronto 18 accused found guiltyrdquo CBC News (23 June 2010) online cbcca lthttpwwwcbccanewscanadatorontostory20100623toronto-18-verdicthtmlgt
52
The source for these powers should be set out in the federal Nuclear Security
Regulations However if this is not a desired option the Government of Ontario must
consider specific legislation setting out the specific powers required to properly secure
these facilities and the specific location in which these powers can be exercised Such
legislation should not be passed without proper notice consultation and legislative
debate
53
SECTION 6 CONCLUSION
The PWPA was enacted in 1939 to support the war effort At the time the protection of
Ontariorsquos hydroelectric facilities from sabotage was of particular concern Since then the
PWPA has been used to provide the legal foundation for the powers exercised by the
police in providing court security and even more recently by the OPG in securing
nuclear power facilities In June 2010 the PWPA was used to provide powers to secure
intergovernmental conferences The vagueness of the PWPA permits it to be used in
situations when it is arguably not necessary and potentially abusive In my view the
PWPA has been used for purposes beyond its original intent
The time for the PWPA seems to have passed If the Government of Ontario enacts as I
have suggested specific legislation to provide for courthouse security and power
generating infrastructure security it would appear that there is no longer a need for the
PWPA I am also mindful of the existence of counter-terrorism and emergencies
legislation to deal with these situations as they arise
ldquoIn determining the boundaries of police powers caution is required to ensure the proper
balance between preventing excessive intrusions on an individualrsquos liberty and privacy
and enabling the police to do what is reasonably necessary to perform their duties in
protecting the publicrdquo130 The overly broad and vague language of the PWPA does not
strike this required balance with individual rights and freedoms
The late Justice Jackson of the United States Supreme Court stated that every
emergency power once conferred ldquolies about like a loaded weapon ready for the hand of
130 R v Clayton [2007] 2 SCR 725 at 742
54
any authority that can bring forward a plausible claim of an urgent needrdquo131 The need to
protect the public must be balanced with the requirement to preserve fundamental rights
and freedoms
Yet at the same time ldquoCanadians are entitled to demand the best public order policing
possible from their governmentrdquo132 There is no question that we live in a different world
post 911 We live in difficult times with constant threats both domestically and from
abroad The police clearly need to be given adequate powers to carry out their duties
The police use their expertise on a daily basis to assess the powers they require In
instances when they take action that exceeds their powers their actions are examined by
various mandated bodies This process I believe results in the proper balance between
police powers and individual rights and freedoms Therefore any legislation that purports
to grant special police powers must be specific and direct and developed in consultation
with stakeholders and tested through thorough debate in our transparent democratic
system
131 Korematsu v United States 323 US 214 (1944)132 Supra note 26 p 8
55
Duties of guard (3)Subject to the regulations and to any special direction of the Solicitor General or
the Commissioner of the Ontario Provincial Police Force every guard shall obey all directions of the person appointing him or her any inspector of the Ontario Provincial Police Force the chief of police of the municipality in which is located the public work that he or she is protecting and the person who is in charge of the protecting of the public work
Breach of duty of guard (4)Every guard who (a) neglects or refuses to obey a direction that he or she is required to obey under
subsection (3) (b) fails in any manner to carry out his or her duties as guard
(c) leaves the location to which he or she is assigned as guard or ceases to act as guard without leave of any of the persons mentioned in subsection (3) or
(d) otherwise conducts himself or herself in a manner not consistent with his or her duties as guard
is guilty of an offence and on conviction is liable to a fine of not more than $500 or to imprisonment for a term of not more than two months or to both RSO 1990 c P55 s 2
Powers of guard or peace officer 3A guard or peace officer (a) may require any person entering or attempting to enter any public work or any
approach thereto to furnish his or her name and address to identify himself or herself and to state the purpose for which he or she desires to enter the public work in writing or otherwise
(b) may search without warrant any person entering or attempting to enter a public work or a vehicle in the charge or under the control of any such person or which has recently been or is suspected of having been in the charge or under the control of any such person or in which any such person is a passenger and
(c) may refuse permission to any person to enter a public work and use such force as is necessary to prevent any such person from so entering RSO 1990 c P55 s 3
Statement under oath to be conclusive evidence 4For the purposes of this Act the statement under oath of an officer or employee
of the government board commission municipal or other corporation or other person owning operating or having control of a public work as to the boundaries of the public work is conclusive evidence thereof RSO 1990 c P55 s 4
Refusal to obey guard etc 5(1)Every person who neglects or refuses to comply with a request or direction
made under this Act by a guard or peace officer and every person found upon a public
6
work or any approach thereto without lawful authority the proof whereof lies on him or her is guilty of an offence and on conviction is liable to a fine of not more than $500 or to imprisonment for a term of not more than two months or to both
Arrest (2)A guard or peace officer may arrest without warrant any person who neglects
or refuses to comply with a request or direction of a guard or peace officer or who is found upon or attempting to enter a public work without lawful authority RSO 1990 c P55 s 5
Regulations 6The Lieutenant Governor in Council may make regulations
(a) providing for the organization co-ordination supervision discipline and control of guards
(b) defining the areas that constitute approaches to public works either generally or with regard to a particular public work
(c) respecting any matter necessary or advisable to carry out effectively the intent and purpose of this Act RSO 1990 c P55 s 6
1 Discussion of Key Sections
(a) Definition of ldquoPublic Workrdquo
Section 1 defines ldquopublic workrdquo very broadly There are at least three classes of public
works The first class includes certain transportation infrastructure (ldquorailway canal
highway bridgerdquo) energy infrastructure (ldquopower works including all property used for
the generation transformation transmission distribution or supply of hydraulic or
electrical power gas worksrdquo) other public utilities (ldquowater works public utilityrdquo) and
other ldquoworksrdquo generally (ldquoor other workrdquo) This first class of public works may be
publicly or privately owned (ldquoowned operated or carried on by the Government of
Ontario or by any board or commission thereof or by any municipal corporation public
utility commission or by private enterprisesrdquo)
The second class of defined ldquopublic worksrdquo includes all provincial and municipal
buildings ldquoPublic buildingrdquo is not defined It would appear to clearly include buildings
7
such as the Legislative Assembly courthouses and city halls and likely includes
provincially or municipally owned buildings used for governmental purposes It would
also seem to include provincially or municipally owned buildings used for other
purposes such as libraries for example
The third class of ldquopublic worksrdquo includes any other building place or work designated
as a public work by the Lieutenant Governor in Council The word ldquoplacerdquo would appear
to be a very broad term that could include a public park for example The area
designated by O Reg 23310 fell into this class of ldquopublic workrdquo
(b) Appointment and Powers of Guards and Peace Officers
Section 2 of the PWPA provides for the appointment of ldquoguardsrdquo the powers and duties
of peace officers and guards and the penalties for any breach of duty by these peace
officers and guards The PWPA provides that anyone who is a head of a board
commission or other body having charge over a public work can appoint a guard This is
very broad and arguably allows for the appointment of a private army by someone
ldquohaving charge ofrdquo a public work whoever that may be Pursuant to s 2(2) the ldquoguardsrdquo
have the same powers as a ldquopeace officerrdquo
Section 3 sets out the powers a guard or peace officer acquire pursuant to the PWPA
including that a guard may require people entering or approaching a public work to
identify themselves and to state the purpose for which they desire to enter the public
work In addition the guard or peace officer may search without warrant any person or
vehicle entering or attempting to enter a public work The guard or peace officer can
8
refuse to permit a person to enter a public work and can use as much force as necessary in
this endeavour
(c) Boundaries of Public Work
Section 4 provides that a statement under oath by an officer or employee of the person or
entity operating or having control of a public work regarding the boundaries of the public
work serves as conclusive evidence with respect to the boundaries
(d) Offence Power of Arrest
Section 5 provides that any person who neglects or refuses to comply with a request or
direction made by a guard or peace officer is guilty of an offence In addition a person
who enters a public work or an approach to a public work without lawful authority is
guilty of an offence A person found guilty of an offence is liable to a fine of not more
than $500 andor imprisonment of not more than two months A guard or peace officer
has the power to arrest without warrant any person who refuses to comply with a request
or direction of a guard or peace officer and who enters or attempts to enter a public work
without lawful authority
(e) Regulations
Section 6(b) provides that the Lieutenant Governor in Council may define the areas that
constitute approaches to public works while s 6(c) permits regulations to be made
regarding any matter necessary to carry out the intent and purpose of the PWPA
D Events Leading to Passage of O Reg 23310
There was no apparent reference to the possible use of the PWPA until fairly late in the
planning process for the security for the G20 Summit The Province of Ontario originally
9
attempted to obtain support for its security measures through reliance on a federal statute
the Foreign Missions and International Organizations Act (ldquoFMIOArdquo) which provides
that the RCMP can take ldquoappropriate measuresrdquo to ensure the proper functioning of an
intergovernmental conference ldquoin a manner that is reasonable in the circumstancesrdquo8
On May 7 2010 John Burke Deputy Minister of Community Safety and Correctional
Services of Ontario wrote to William Baker Deputy Minister of Public Safety Canada9
stating that security would be enhanced by the existence of an agreement pursuant to s
101(4) of the FMIOA which provides that the Federal Minister of Public Safety may
enter into arrangements with the government of a province concerning the responsibilities
of members of the RCMP and provincial municipal police forces with respect to
ensuring security for the proper functioning of a conference
On June 11 2010 the Provincial Deputy Minister received a reply10 from the Federal
Deputy Minister indicating that such an agreement would not be required for the
Summits since ldquothe current suite of powers and authorities that peace officers possess at
common law or by virtue of any other federal or provincial Act or regulation were
sufficient for the G8 and G20 Summitsrdquo
The Federal Deputy Minister was clear that in his view the police had sufficient authority
at common law and in statute to secure these conferences Similarly the OPP were of the
view that it was not necessary for the police forces to have any additional police powers
8 SC 1991 c 41 s 101(2) Attached as Appendix 5 is a copy of selected sections of the FMIOA 9 Attached as Appendix 6 is a copy of the May 7 2010 letter10 Attached as Appendix 7 is a copy of the letter received on June 11 2010
10
other than those already conferred by virtue of common law and statute (excluding the
PWPA) in order to secure the interdiction zones for the Summits
On May 12 2010 Chief William Blair of the TPS wrote to the Honourable Rick
Bartolucci Minister of Community Safety and Correctional Services11 stating that a
ldquocornerstonerdquo of the TPS security plan for the G20 Summit would be the establishment of
a security perimeter in an area around the Metro Toronto Convention Centre The
purpose of this security perimeter as explained in the letter was to ldquoensure the safety and
security of those attending the Summit the Summit site itself and people and property
within the area close to the Summit siterdquo Chief Blair indicated that the TPS would rely
upon the authority granted to it pursuant to the common law and if certain conditions are
met the FMIOA12 to establish and control the security perimeter However he believed
that the provisions of the PWPA ldquowould also offer legal support for the extraordinary
security measuresrdquo he believed would be necessary Chief Blair therefore requested ldquothe
Lieutenant Governor in Council to designate the area of or highways within the intended
security perimeter as a public work for the period from June 21 2010 through the end of
the Summit on June 27 2010rdquo A detailed description of the area requested to be
designated as a public work was provided to Minister Bartolucci as well as an aerial
photograph of the area
I am not aware that any organization publicly questioned the inherent police power to
erect fences defining the interdiction zone The Canadian Civil Liberties Association
11 See Appendix 312 This probably is in reference to s 101(4) of the FMIOA which provides the authority for the Minister of Public Safety and Emergency Preparedness to enter into arrangements with the government of a province concerning the responsibilities of members of the RCMP and members of the provincial and municipal police forces with respect to ensuring the security for the proper functioning of an intergovernmental conference
11
(ldquoCCLArdquo) published a document entitled ldquoProtecting civil liberties and human rights at
the G20 statement of concernsrdquo on May 21 201013 In this document the CCLA
expressed concern with the size of the security perimeter ldquoParticularly where there is a
primary fence to ensure safety around conference venues and delegate hotels any further
restrictions on mobility or protest must be fully and carefully justifiedrdquo14 However the
CCLA supported ldquothe overall goal of ensuring that the G20 is conducted in a manner that
is safe for delegates protesters and Toronto residents in generalrdquo15 and noted the
RCMPrsquos authority under the FMIOA There was no doubt expressed by the CCLA
concerning the power of police to erect security fences
By letter dated June 15 201016 Minister Bartolucci wrote to Chief Blair acknowledging
the request and stating in part
I agree that there are various sources of legal authority to support the security perimeter I also recognize the desirability of having additional sources of legal authority to ensure clarity regarding the ability of the Toronto Police Service to take the steps that it will be taking Accordingly I am pleased to inform you that a regulation has been made under the PWPA in response to your request
The Minister informed Chief Blair that O Reg 23310 had been filed with the Registrar
of Regulations and would come into force on June 21 2010 and would be revoked as of
June 28 2010 The area requested by Chief Blair to be designated as a ldquopublic workrdquo
was so designated in O Reg 23310
13 Canadian Civil Liberties Association Protecting civil liberties and human rights at the G20 statement of concerns May 21 2010 online Canadian Civil Liberties Association lthttpcclaorgwordpresswp-contentuploads201005G20-CCLA-Statement-of-Concernspdfgt14 Ibid p 415 Ibid p 316 Attached as Appendix 8 is a copy of the June 15 2010 letter
12
Four days earlier on June 11 2010 Mike McDonell the Assistant Commissioner of the
RCMP sent a letter to Chief Blair17 containing a thorough review of the statutory sources
of the RCMPrsquos duties and powers to secure intergovernmental conferences Assistant
Commissioner McDonell outlined the police authority to fully secure the G8 and G20
Summits
More specifically in relation to the Summits the RCMP will be taking measures to fulfill duties related to the protection of Internationally Protected Persons (IPPrsquos) that befall police in general and the RCMP in specific The official visit of the head of state or high ranking dignitary of a foreign country is an event that frequently engenders a real or apprehended threat to the preservation of peace which demands the adoption of proper and reasonable security measures in and by the host country
Furthermore Canada is a signatory of the United Nations Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons Including Diplomatic Agents In that regard Canada has specifically adopted laws requiring peace officers to protect IPPs as defined in section 2 of the Criminal Code in accordance with its international obligationshellip
Legal authorities also permit the RCMP to collaborate with other police forces such as the OPP in the fulfillment of its duties including in relation to securing the perimeter Such collaboration is essential in light of concurrent mandates of policing partners particularly in relation to the legal duties to preserve the peace and protect life and property
E O Reg 23310
On June 2 2010 Cabinetrsquos Legislation and Regulations Committee passed O Reg
23310 It was signed by the Lieutenant Governor on June 3 2010 and published on June
16 2010 on e-Laws a website maintained by the Government of Ontario not frequently
accessed by the public This website provides access to official copies of Ontariorsquos
statutes and regulations O Reg 23310 came into force on June 21 2010 and was
17 Attached as Appendix 9 is a copy of the June 11 2010 letter
13
revoked on June 28 2010 It was not published in The Ontario Gazette18 until July 3
2010 after it had already been revoked Section 23(2) of Ontariorsquos Legislation Act
200619 provides that a regulation is not effective against a person before the earliest of
when the person has actual notice of it the last instant on the day on which it is published
on the e-Laws website or the last instant of the day on which it is published in the print
version of The Ontario Gazette As a result though the technical requirements for
providing notice of O Reg 23310 were met I have concerns whether adequate notice
was given to the public especially in light of the fact that the regulation was not
published in The Ontario Gazette until it had already been revoked
The regulation set out the area where the security fence was to be erected and designated
that area as a ldquopublic workrdquo which then called into play all the powers provided by the
PWPA
ONTARIO REGULATION 23310
made under the
PUBLIC WORKS PROTECTION ACT
Made June 2 2010Filed June 14 2010
Published on e-Laws June 16 2010Printed in The Ontario Gazette July 3 2010
DESIGNATION OF PUBLIC WORKS
Designation 1 The following are designated as public works for the purposes of the Act 1 Everything described in clause (a) of the definition of ldquopublic workrdquo in section
1 of the Act that is located in the area described in Schedule 1 including without limitation and for greater certainty every sidewalk in that area
2 The places described in paragraphs 1 2 and 3 of Schedule 2
18 The Ontario Gazette contains Ontariorsquos legal notices and regulations19 SO 2006 c 21 Sched F
14
Revocation 2 This Regulation is revoked on June 28 2010
Commencement 3 This Regulation comes into force on the later of June 21 2010 and the day
it is filed SCHEDULE 1
AREA REFERRED TO IN PARAGRAPH 1 OF SECTION 1
The area in the City of Toronto lying within a line drawn as follows
Beginning at the curb at the southeast corner of Blue Jays Way and Front Street West then north to the centre of Front Street West then east along the centre of Front Street West to the east curb of Windsor Street then north along the east curb of Windsor Street to the centre of Wellington Street then east along the centre of Wellington Street to the centre of Bay Street then south along the centre of Bay Street to a point directly opposite the north wall of Union Station then west along the exterior of the north wall of Union Station to the centre of York Street then south along the centre of York Street continuing east of the abutments under the railway overpass and continuing south along the centre of York Street to the centre of Bremner Boulevard then west along the centre of Bremner Boulevard to the east curb of Lower Simcoe Street then south along the east curb of Lower Simcoe Street to the north curb of Lake Shore Boulevard West then west along the north curb of Lake Shore Boulevard West to the south end of the walkway that is located immediately west of the John Street Pumping Station and runs between Lake Shore Boulevard West and the bus parking lot of the Rogers Centre then north along the west edge of that walkway to the bus parking lot of the Rogers Centre then west along the south edge of the bus parking lot of the Rogers Centre to the west edge of the driveway running between the parking lot and Bremner Boulevard then north along the west edge of that driveway to the north curb of Bremner Boulevard then west along the north curb of Bremner Boulevard to the east curb of Navy Wharf Court then north along the east curb of Navy Wharf Court to the southwest point of the building known as 73 Navy Wharf Court then east along the exterior of the south wall of that building then north along the exterior of the east wall of that building to the curb of Blue Jays Way then north along the east curb of Blue Jays Way to the curb at the southeast corner of Blue Jays Way and Front Street West
SCHEDULE 2DESIGNATED PLACES REFERRED TO IN PARAGRAPH 2 OF SECTION 1
1 The area within the area described in Schedule 1 that is within five metres of a line drawn as follows Beginning at the south end of the walkway that is located immediately west of the John Street Pumping Station and runs between Lake Shore Boulevard West and the bus parking lot of the Rogers Centre then north along the west edge of that walkway to the bus parking lot of the Rogers Centre then west along the south edge of the bus parking lot of the Rogers Centre to the west edge of the driveway running between the parking lot and Bremner
15
Boulevard then north along the west edge of that driveway and ending at Bremner Boulevard
2 The area within the area described in Schedule 1 that is within five metres of a line drawn as follows
Beginning at the southwest point of the building known as 73 Navy Wharf Court then east along the exterior of the south wall of that building then north along the exterior of the east wall of that building and ending at the curb of Blue Jays Way
3 The below-grade driveway located between Union Station and Front Street West and running between Bay Street and York Street in the City of Toronto
F Information Given to Public Regarding Security Protocol
Attempts were made to inform the public about the security measures that would be in
place leading up to and throughout the G20 The City of Toronto in consultation with
the ISU produced an information article20 and flyers21 No mention is made in the article
or flyers of the PWPA or O Reg 23310 and the powers given to the police The City of
Toronto also prepared an advertisement which appeared in local newspapers22 The
original version of the advertisement made no reference to the fact that people would be
subject to a search when attempting to access the security perimeter although reference
was made to the requirement to show identification and to have a valid purpose for
entering the restricted area A later version of the advertisement included additional text
advising that anyone requesting access to the security perimeter may be subject to a
search However just as with the article and flyers no specific mention was made of the
PWPA or O Reg 23310
20 A million copies of the newsletter Our Toronto which contained an article entitled ldquoWhat to expect during the G20 ndash June 26 amp 27 2010rdquo were delivered to homes in the City of Toronto21 Approximately 10000 flyers were sent to homes and businesses within the affected area The flyercontained general information about security and the anticipated effects on traffic22 The advertisement appeared in the Toronto Star Toronto Sun and Metroland community papers
16
In the days leading up to and throughout the G20 Summit there was apparently a
misunderstanding on the part of the police regarding a purported ldquofive-metre rulerdquo This
confusion likely emanated from the ldquofive-metresrdquo referenced in Schedule 2 of O Reg
23310 However the purpose of Schedule 2 was to designate as ldquopublic work(s)rdquo three
specific private property locations on which the security fence was to be erected that were
not ldquopublic worksrdquo The remainder of the fence was on public sidewalks and streets
which are ldquopublic worksrdquo To ensure that the fence was located on a ldquopublic workrdquo the
drafters designated the area within five metres of the security fence in these three
locations as a ldquopublic workrdquo23 Unfortunately the wording of Schedule 2 was very
cumbersome and the relationship between the area defined in Schedule 1 and the five-
metre reference in Schedule 2 was difficult to understand
Because of this confusion unfortunately the message was conveyed that the regulation
provided for a five-metres zone outside the entire security fence and that therefore the
PWPA applied to this entire area24 The media reported during the G20 summit that the
police had ldquosweepingrdquo powers pursuant to the PWPA within five-metres outside of the
exterior security fence25 O Reg 23310 did not provide the police such authority
23 Attached as Appendix 10 is a copy of a map showing the three specific areas designated in Schedule 2 of O Reg 2331024 Jennifer Yang ldquoJust being near the G20 security zone can get you arrestedrdquo Toronto Star (25 June 2010) online thestarcom lthttpwwwthestarcomnewsgtatorontog20summitarticle828498--just-being-near-the-g20-security-zone-can-get-you-arrestedgt25 David Rider et al ldquoDalton McGuinty Bill Blair defend quiet boost in arrest powersrdquo Toronto Star (26 June 2010) online thestarcom lthttpwwwthestarcomnewsgtatorontog20summitarticle828974--dalton-mcguinty-bill-blair-defend-quiet-boost-in-arrest-powersgt
17
SECTION 3 COMMENTARY
A Public Policy Considerations
There are some overarching public policy considerations which affect the issues I have
been asked to address in the Terms of Reference
As stated earlier the legislation was the product of emergency World War II concerns
related to the possibility of enemy sabotage of important infrastructures The legislative
debates in September of 1939 were particularly concerned with the provincersquos
hydroelectric facilities However notwithstanding these apparently specific concerns
when drafted the definition of ldquopublic workrdquo is extraordinarily broad and from a policy
standpoint raises questions of overbreadth especially given the ability to designate
almost anything a public work In a mere definition section s 1 of the legislation allows
the Lieutenant Governor in Council to designate ldquoany other building place or workrdquo as a
ldquopublic workrdquo However taken to its logical conclusion an entire city or more could be
designated as a ldquopublic workrdquo The definition of ldquopublic workrdquo includes ldquoany provincial
and any municipal public buildingrdquo but ldquopublic buildingrdquo is not further defined thereby
creating an element of uncertainty as to the specific provincial and municipal buildings
captured by this definition While perhaps extreme measures in times of war require
flexibility in all other circumstances legislation of this nature requires limitations and a
more specialized approach
The expression ldquoprivate armyrdquo was used in the Ontario legislative debate in 1939
Theoretically at least private armies could be created through the use of the ldquoguardrdquo
appointing authority by the many individuals who are authorized to appoint guards
pursuant to the PWPA This authority was apparently in response to the Federal
18
Governmentrsquos refusal to assume through the Defence Department the responsibility of
guarding utilities and industries essential to the war effort While such a result might not
have been contemplated in a parliamentary democracy it is clearly unwise to leave such
a possibility open
Section 3 of the PWPA provides in part that a guard or a peace officer
(a) may require any person entering or attempting to enter any public work or any approach thereto to furnish his or her name and addresshellipand to state the purpose for which he or she desires to enter the public work in writing or otherwise
The primary problem I see with this section is the vagueness of the term ldquoapproach
theretordquo An approach could begin at a considerable distance from the public work
Section 6(b) also provides for the making of regulations ldquodefining the areas that
constitute approaches to public works either generally or with regard to a particular
public workrdquo
In addition s 3(b) of the PWPA provides that a guard or peace officer ldquomay search
without warrant any person entering or attempting to enter a public workrdquo This section
does not permit any person to abandon any attempt to enter a public work in order to
avoid being subjected to a warrantless search Such conduct is adopted by persons who
decide not to enter a secured courthouse in order to avoid a warrantless search
Section 4 provides that for the purposes of the PWPA the statement under oath made by
persons engaged in the operation of a public work ldquoas to the boundaries of the public
work is conclusive evidence thereofrdquo Section 4 should be considered with s 5(1) which
provides that ldquoevery person found upon a public work or any approach thereto without
lawful authority the proof whereof lies on him or her is guilty of an offencehellip(emphasis
19
added)rdquo The provision in s 4 that ldquothe statement under oathhellipis conclusive evidence
thereofrdquo appears to remove from a courtrsquos consideration what could be a legitimate
dispute as to the boundaries of a public work or the approach thereto Furthermore the
apparent reversal of the onus of proof regarding lawful authority to be found in a public
work or an approach found in s 5 is also troublesome from a policy and legal point of
view
Accordingly if utilized to the extreme many government officials could appoint many
private armies to restrict access to many (in fact any) public places where the mere
statement under oath by the private guard of the boundaries of the areas under restricted
access is conclusive proof thereof Such potential for abuse is beyond troubling to say
the least
B Review of other Public Reports
As is evident from the foregoing discussion many issues arise regarding the operation of
the PWPA in todayrsquos context These considerations and others also formed the basis of
concerns raised in public reports which I was asked to review
1 Reports of the Canadian Civil Liberties Association
The CCLA preliminary G20 report26 dealt with most of the police related events that
occurred in Toronto during the G20 conference during the weekend of June 26th and 27th
2010 I will only make reference to a few portions of the report that deal with the Terms
of Reference
26 Canadian Civil Liberties Association A Breach of the Peace ndash A Preliminary Report of Observations During the 2010 G20 Summit June 29 2010 online Canadian Civil Liberties Association lthttpcclaorgwordpresswp-contentuploads201006CCLA-Report-A-Breach-of-the-Peace-Preliminary-report-updated-July-8pdfgt
20
The report of the CCLA called for the repeal or significant amendment to the PWPA ldquoto
meet basic constitutional standardsrdquo27 The CCLA ldquosuggests that the broad police powers
granted under the Act are inconsistent with current Charter requirementsrdquo28
I agree with the observation of the CCLA that the provisions of the PWPA led to a ldquolack
of clarity as to the scope of the search and seizure powersrdquo29 which created many
difficulties and conflicts that probably could have been avoided I would also certainly
agree with a conclusory comment in this preliminary report that ldquoit is the duty of police
officers to act with fairness and equanimity toward all citizens in accordance with the law
of the country The presumption of innocence and the protection against arbitrary arrests
and detention are at the core of a commitment to justicerdquo30
The CCLA in partnership with the National Union of Public Employees organized
public hearings for two days in Toronto and one day in Montreal in November of 2010
which they referred to as a Citizens Inquiry The Citizens Inquiry heard from 63 members
of the public who had witnessed policing incidents or had been detained Several lawyers
and academics also participated in the hearing and offered commentary on the events of
the G20 from a legal or policing perspective including issues related to the PWPA A
report of the hearings titled ldquoG20 Toronto Breach of the Peace Public Hearingsrdquo was
released on February 28 2011 which also referred to the PWPA31
27 Ibid p 2228 Ibid p 929 Ibid p 1230 Ibid p 2131 Canadian Civil Liberties Association and the National Union of Public and General Employees G20 Toronto Breach of the Peace Public Hearings February 2011 online Canadian Civil Liberties Association lthttpcclaorgwordpresswp-contentuploads201102Breach-of-the-Peace-Final-Reportpdfgt
21
2 The Ontario Ombudsman Report
The Ontario Ombudsman commenced an investigation after receiving complaints relating
to a variety of issues concerning the G20 The Marin Report recognized that ldquotypically
international summits attract protests and protests can turn violent and even deadlyrdquo32
The report therefore does not quarrel with the requirement that a high level of security is
required for such events
The report in my view accurately describes the PWPA as ldquounique in Canada in terms of
the breadth of its reach and the powers it confershellipno other Canadian statute defining
lsquopublic worksrsquo contains provisions similar to those found in Ontariorsquos Actrdquo33
32 Ontario Ombudsman report Investigation into The Ministry of Community Safety and Correctional Servicesrsquo Conduct in Relation to Ontario Regulation 23310 under the Public Works Protection Act ldquoCaught in the Actrdquo by Andreacute Marin (Toronto Ombudsman of Ontario December 2010) online Ombudsman of Ontario lthttpwwwombudsmanoncamedia157555g20final1-enpdfgt (ldquoMarin Reportrdquo) at para 733 Ibid at para 97
22
SECTION 4 POWERS OF THE POLICE
Pursuant to the Terms of Reference I have been asked to consider for future purposes
whether the powers given to peace officers and guards under the PWPA are necessary to
protect public works secure intergovernmental conferences or for any other purposes
To answer that question it is necessary to assess whether the current common law and
statutory regime provide the police with sufficient powers to perform these vital services
A Common Law Powers and Powers Pursuant to Police Services Acts
The police have extensive common law powers that can be used in protecting and
securing intergovernmental conferences and in protecting public works It is necessary to
examine those powers in order to assess whether and what if any additional powers are
needed such as those provided by the PWPA
Of particular assistance in this regard is R v Knowlton34 where the Supreme Court of
Canada considered whether the powers possessed by peace officers at common law and
statute in securing an area for the protection of a foreign dignitary were lawful The
Supreme Court of Canada held that in order for the exercise of peace officer powers to be
lawful the powers must satisfy the two step test set out in R v Waterfield35 First the
power must be in furtherance of a lawful duty Traditional common law peace officer
duties include the preservation of the peace and the prevention of crime These common
law police duties amongst others are now statutorily enshrined in s 42(1) of Ontariorsquos
Police Services Act (and other provincial police services acts)36 The second part of the
test requires an evaluation of whether the conduct of the peace officer was ldquojustifiedrdquo To
34 [1974] SCR 443 [ldquoKnowltonrdquo]35 See for example R v Dedman [1985] 2 SCR 236 RSO 1990 c P15
23
do so one applies the standard of what is reasonably necessary in light of the totality of
the circumstances In evaluating whether the conduct of the peace officer was justified it
is important to consider ldquothe duty being performed the extent to which some interference
with individual liberty is necessary in the performance of that duty the importance of the
performance of the duty to the public good the nature of the liberty being interfered with
and the nature and extent of the interferencerdquo37
In Knowlton police in Edmonton cordoned off an area as part of the security
arrangements for the visit of Premier Kosygin of the USSR Premier Kosygin had been
assaulted in Ottawa a few days prior to his visit to Edmonton Knowlton entered the
secured area questioning the power of the peace officer to prevent his entry He was
arrested without a warrant and charged with obstructing a peace officer in the execution
of his duties Knowlton argued that the peace officer did not have the power to prevent
his entry and was not acting in the execution of his duty
The Supreme Court of Canada emphasized the heightened importance of security when
there are visiting foreign dignitaries38
It is notorious and of common knowledge that the official visit of the head of state or high rank dignitary of a foreign country friendly as either may be is an event that frequently engenders a real or apprehended threat to the preservation of peace and that calls therefore for the adoption of proper and reasonable security measures in and by the host countryhellipThe restriction of the right of free access of the public to public streetshellipwas one of the steps--not an unusual one--which police authorities considered and adopted as necessary for the attainment of the purpose aforesaid In my opinion such conduct of the police was clearly falling within the general scope of the duties imposed upon them
37 R v Mann [2004] 3 SCR 59 at 7938 Supra note 34 at 447-448
24
In addressing the first part of the Waterfield test the Court referenced provisions of the
Alberta Police Act and the Criminal Code and concluded that the conduct of the peace
officers fell within the general scope of the duties imposed upon them for example
preservation of the peace and prevention of crime39
According to the principles which for the preservation of peace and prevention of crime underlie the provisions of s 30 amongst others of the Criminal Code these official authorities were not only entitled but in duty bound as peace officers to prevent a renewal of a like criminal assault on the person of Premier Kosygin during his official visit in Canada In this respect they had a specific and binding obligation to take proper and reasonable steps The restriction of the right of free access of the public to public streets at the strategic point mentioned above was one of the steps--not an unusual one--which police authorities considered and adopted as necessary for the attainment of the purpose aforesaid In my opinion such conduct of the police was clearly falling within the general scope of the duties imposed upon them
In analyzing the second step of the Waterfield test the Court concluded that there was no
evidence indicating the police officers resorted to an unjustifiable use of the powers
associated with the duties imposed on them
The Court in Knowlton recognized broad police powers to cordon off areas as part of the
security arrangements involving internationally protected persons In addition the Court
found that the warrantless arrest in that case was not an unjustifiable or unreasonable use
of powers associated with the police duties to preserve the peace order public safety and
to enforce the law and prevent crime Finally the Court found that peace officers were
duty bound ldquoto prevent a renewal of a like criminal assault on the person of Premier
Kosygin during his official visit in Canadardquo40 Furthermore it stated the closing of public
39 Ibid 40 Ibid at 447
25
streets ldquowas one of the steps -- not an unusual one -- which police authorities considered
and adopted as necessaryrdquo41
The Knowlton decision clearly acknowledged that the police had the duty and authority to
establish and enforce a secured area to protect a foreign dignitary In order to carry out
these duties the police may do what is reasonably necessary in light of the totality of the
circumstances
Though Knowlton was decided prior to the enactment of the Canadian Charter of Rights
and Freedoms (the ldquoCharterrdquo) this does not in my view affect the clear statement by the
Supreme Court of Canada regarding the duty of the police under the common law and the
Alberta Police Act to provide this security While the facts of Knowlton were quite
compelling in relation to the obvious need to provide adequate security for Premier
Kosygin the decision is equally important authority regarding the general responsibilities
of the police at common law and statute in relation to the preservation of the peace
B Other Statutory Powers
1 Criminal Code
Some specific powers are provided to peace officers pursuant to the Criminal Code42
Section 31 gives peace officers the power to arrest an individual for breach of the peace
Peace officers can arrest those committing the breach of the peace or those who on
reasonable grounds heshe believe are about to join in or renew the breach of the peace
Peace officers also have powers at their disposal under ss 63-69 of the Criminal Code to
deal with the offences of unlawful assembly and riots
41 Ibid at 447-448 42 RSC 1985 c C-46
26
2 Trespass to Property Act
The Ontario Trespass to Property Act43 is a potential source of police power to arrest
without warrant those who are unlawfully on certain premises or who were recently
unlawfully on the premises and refuse to give their name and address44 This statute
deals with illegal entry into both private and public property by creating the offence of
trespass for those who without the express permission of the occupier enter on to
premises or engage in an activity on the premises when it is prohibited by the statute45
Though this statute is primarily used by private property owners to keep unwanted people
off of their property it has also been invoked by the Speaker of the House46 and by the
City of Toronto47 It must be noted however that using the Trespass to Property Act in
relation to removing individuals from ldquopublicrdquo places may raise Charter issues48
3 Foreign Missions and International Organizations Act
The RCMP as peace officers have the general duty to preserve the peace and prevent
crime and offences as set out in s 18 of the Royal Canadian Mounted Police Act49
Additional duties found in s 17 of the Royal Canadian Mounted Police Regulations
198850 include the protection of ldquointernationally protected personsrdquo as defined in s 2 of
the Criminal Code Internationally protected persons include heads of state and their
43 RSO 1990 c T2144 Ibid ss 9(1) 1045 Ibid s 2(1)46R v Behrens [2004] OJ No 5135 (CJ) The Court held that the issue of the trespass notices fell under the Speakerrsquos parliamentary privilege and were not reviewable even on the basis of a Charter argument47R v Semple [2004] OJ No 2137 (CJ)48 In R v Semple the defendants were charged under the Ontario Trespass to Property Act for entering the grounds of Toronto City Hall after being banned from doing so In the end the Court held that the defendantsrsquo peaceful entry onto the grounds was an expression as per s 2(b) of the Charter Torontorsquos notice under the Act infringed on this freedom and in these circumstances it could not be justified under s 1 of the Charter 49 RSC 1985 c R-1050 SOR88-361
27
family members The RCMPrsquos duty to protect internationally protected persons is also
found in s 6(1) of the Security Offences Act51
In addition Canada is a signatory of the United Nations Convention on the Prevention
and Punishment of Crimes against Internationally Protected Persons including
Diplomatic Agents52 This Convention provides that the Government of Canada must
protect visiting heads of state or government foreign ministers representatives or
officials of a state or any official or other agent of an international organization of an
intergovernmental character and the family members that accompany him or her The
RCMP has the responsibility to carry out these security measures
Pursuant to s 101(1) of the FMIOA ldquoThe Royal Canadian Mounted Police has the
primary responsibility to ensure the security for the proper functioning of any
intergovernmental conference in which two or more states participate that is attended by
persons granted privileges and immunities under this Act and to which an order made or
continued under this Act appliesrdquo
The powers to carry out this mandate are found in s 101(2) of the FMIOA ldquothe Royal
Canadian Mounted Police may take appropriate measures including controlling limiting
or prohibiting access to any area to the extent and in a manner that is reasonable in the
circumstancesrdquo It is noteworthy that the FMIOA has legislated the same powers
provided to the police under common law and statute
In order to trigger the RCMP powers described in s 101 the Governor in Council on the
51 RSC 1985 c S-752 UNGA Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons including Diplomatic Agents 20 February 1977 UN Doc I-15410
28
recommendation of the Minister of Foreign Affairs and pursuant to s 5 of the FMIOA
made the G8 Summit Privileges and Immunities Order 201053 on December 10 2009
This order was repealed and a subsequent order54 was made on January 13 2010 A
similar order55 for the G20 Summit was made on March 11 201056
Therefore during the G20 the RCMP had the specific statutory power to limit or
prohibit access to any area and to any extent as long as the measures were appropriate
and done in a manner that was reasonable in the circumstances ldquoThe RCMP may secure
the perimeter of the security zone on land with fencing and restrict access to this zone
through the use of checkpoints and other measuresrdquo57
Though not invoked during the G20 s 101(4) of the FMIOA provides that arrangements
can be entered into with a province concerning the responsibilities of members of the
RCMP and members of the provincial and municipal police forces with respect to
ensuring the security for the proper functioning of an intergovernmental conference No
information was provided to me as to why such an arrangement was not entered into for
the G20
These intergovernmental security provisions of the FMIOA were enacted just prior to the
G8 being held in Kananaskis Alberta in 2002 In light of violent protests at international
events and the 911 terrorist attacks in the United States the Federal Government
53 SOR2009-33654 SOR2010-1355 SOR2010-6256 Supra note 17 ldquoUpon such an Order being made the RCMP in co-operation and collaboration with other police forces becomes impressed with the primary responsibility of ensuring not only the protection of the IPPs but also ensuring lsquosecurity for the proper functioningrsquo of the intergovernmental conference To that end the FMIOA provides that the lsquoappropriate measures including controlling limiting or prohibiting access to any area to the extent and in a manner that is reasonable in the circumstancesrsquo may be takenrdquo57 Ibid
29
considered it timely ldquoto clarify in statute the present common law authority for police to
provide security and protection for high profile international eventsrdquo58 At such events it
was intended that ldquothe RCMP is the lead to make sure that security is providedrdquo59
Given that it was clearly the intention of the Federal Government to have the RCMP as
the lead police force at these international events consideration should be given to
expand the use of the FMIOA to cover all large scale international events such as the
Olympics the Pan American Games and international trade fairs as these events are
routinely attended by heads of state and senior government officials Most recently
Vancouver held the 2010 Olympic and Paralympic Winter Games60 Though federal and
municipal legislation were passed to assist in securing the Games expansion and
application of the FMIOA would have been a better approach The RCMP as the national
police force ought to be in charge pursuant to their authority under the FMIOA
4 Emergency Legislation
Through my consultations with the parties listed in Appendix 2 I heard that while we are
not in a time of war as in 1939 when the PWPA was enacted we live in an age of
international and local terrorism threats Our democratic society must be vigilant in
58 Canada House of Commons Debates 37th Parl 1st Sess No 93 (5 October 2001) at 100059 Canada House of Commons Standing Committee on Public Safety and National Security 40th Parl 3rd
Sess Evidence (25 October 2010)60 In anticipation of this event the Governor General in Council on the recommendation of the Minister of Transport pursuant to the Aeronautics Act (RSC 1985 c A-2) and the Canadian Air Transport Security Authority Act (SC 2002 c 9 s 2) passed the Vancouver 2010 Aviation Security Regulations (SOR2009-298) The purpose of the regulations was to enhance aviation security during the Games The Regulation provided for extra security and extra authorized means to conduct screenings In addition the Vancouver City Council passed the very lengthy By-law No 9962 known as the ldquoVancouver 2010 Olympic and Paralympic Winter Games By-Lawrdquo Specific security measures to be employed at a city live site (described thoroughly in a Schedule to the By-Law) that were enabled by this By-Law included The installation and monitoring of airport style and other security measures including magnetometers and X-ray machines the installation and monitoring of closed circuit television cameras the searching of any person who wished to enter on to a city live site and any bag luggage or other container carried by such person and the prohibiting of access to or removal from a city live site any person who refused to submit to a search
30
maintaining a proper level of security while recognizing that democratic values and
security issues can conflict where public order is at issue It is important to highlight that
provincial legislation exists dealing with both terrorism threats and emergency situations
I have been informed that federal and provincial counter-terrorism plans exist that
address preventing and responding to acts of terrorism
The Police Services Act regulations mandate police forces to establish procedures
consistent with federal and provincial counter-terrorism plans61 and to have policies with
respect to counter-terrorism62 In addition the Emergency Management and Civil
Protection Act allows for orders to be made in situations specifically designated an
ldquoemergencyrdquo63 by the Lieutenant Governor in Council or the Premier that regulate or
prohibit travel and movement to from or within any specified area64 Therefore the
PWPA is not needed to deal with these emergency situations as specific more recent
emergency legislation is in place for that very purpose
C Gaps in Canadian Police Powers
The Ministry of Community Safety and Correctional Services provided me with an
interesting article published in 2010 entitled ldquoThe Gap in Canadian Police Powers
61 Adequacy and Effectiveness of Police Services O Reg 399 s 2862 Ibid s 2963 Section 1 of the Emergency Management and Civil Protection Act defines an ldquoemergencyrdquo as ldquoemergencyrdquo means a situation or an impending situation that constitutes a danger of major proportions that could result in serious harm to persons or substantial damage to property and that is caused by the forces of nature a disease or other health risk an accident or an act whether intentional or otherwise (ldquosituation drsquourgencerdquo)64 RSO 1990 c E9 s 702(4)
31
Canada needs lsquoPublic Order Policingrsquo Legislationrdquo and co-authored by Wesley Pue and
Robert Diab65
This article was prompted by the debate over the cost nature and extent of security to be
employed at the Vancouver 2010 Winter Olympics The authors criticized the fact that
policing authorities in Canada ldquolack specific statutory authorization to take measures
commonly thought necessary to their missionrdquo66 These measures included security
fences in public areas designated protest areas restricted access to public space police
surveillance and searches without cause
The authors recognize that such powers may be necessary but note that ldquono legislature
has ever expressly conferred such powers on policing authorities outside the context of
international intergovernmental conferences Nor does the common law accord such
powers to state officials on its ownrdquo67 I respectfully disagree with this latter statement
It is my view the police have powers pursuant to the common law and statute as I have
discussed in the preceding section
The authors referred to R v Knowlton68 which I have previously discussed While the
authors give Knowlton a very narrow interpretation stating that ldquoits binding principle is a
good deal narrower than the words taken out of context might suggestrdquo69 I however am
of the view that the decision supports the proposition that police have a broad range of
65 Wesley Pue and Robert Diab ldquoThe Gap In Canadian Police Powers Canada Needs lsquoPublic Order Policingrsquo Legislationrdquo (2010) 28 Windsor Rev Legal Soc Issues 87 Wesley Pue is a professor of legal history at the University of British Columbia and Robert Diab is a PhD candidate at the UBC Faculty of Law66 Ibid p 8867 Ibid68 Supra note 3469 Supra note 65 p 92
32
responsibilities with deep historical roots in the common law and codified in statute a
position shared by the Federal Government when it introduced amendments to the
FMIOA The actions of the police in Knowlton were necessarily incidental to their
common law police duties and powers
The authors conclude that this ldquoauthority of police to create zones of exclusion either as
an incident of the general and ancient duties of constableshelliphas never been established in
the courtsrdquo70 I am of the view however that the role of the police in establishing
security zones relating to a crime a serious accident or other emergency is a routine and
well-accepted use of police powers pursuant to their common law and statutory duties I
am not suggesting that this common law authority permits the police to establish security
zones ldquofor the proper functioning of any intergovernmental conference in which two or
more states participaterdquo71 larger than necessary to fulfill their purpose The FMIOA as
amended in 2002 provides the RCMP with ldquoprimary responsibility to ensure the security
for the proper functioning of the intergovernmental conferencerdquo72 It is interesting
however that when the Federal Government was enacting this specific authority the
legislative debates indicated that the government was merely clarifying ldquoin statute the
present common law authority for police to provide security and protection for high
profile international eventsrdquo73
Security perimeters are routinely erected by police in the context of the commission of a
crime motor vehicle and other accidents as well as the Santa Claus parade and other
70 Ibid p 9671 Supra note 8 s 101(1)72 Ibid73 Supra note 58
33
parades It would in my view be quite impractical and unnecessary to legislate an
extensive code of police powers given their common law and statutory responsibilities to
generally maintain public order It is not advisable in my opinion to be prescriptive in
any way regarding what actions the police can take since they must assess what the
situation warrants while at the same time considering individual rights and freedoms
The details of any police response to an emergency must be tailored to the exigencies
related to the situation
The police clearly have common law and statutory authority to conduct warrantless
searches in specific situations (ldquoin exigent circumstancesrdquo)74 However when
warrantless searches must be carried out on a regular routine basis the police are acting
more like full time security guards and there should be specific statutory authority
provided to give such powers
I certainly accept the general proposition the authors assert that the mobility rights of
citizens should not be unreasonably or unfairly dealt with However one only need be
aware of the massive amount of construction taking place on the streets of Toronto as this
Report is being written to appreciate that it is not always reasonable to expect that ldquothe
rights of businesses homeowners and ordinary citizens to go about their routine
activities without interruptionrdquo75 will go unhindered While generally desirable it cannot
be legally guaranteed At the same time the authors do concede that ldquoimportant as they
74 Supra note 42 s 4871175 Supra note 65 p 89
34
are the rights of assembly movement and protest are not unqualified They can ndash and
should ndash be balanced against other important public needsrdquo76
In my view public policing at times requires innovation as it often benefits from
creative problem solving If police abuse their common law powers related to ldquopublic
order policingrdquo they are accountable to a multiplicity of authorities and the rule of law
most particularly the Charter The legal rights outlined in the Charter such as ldquothe
principles of fundamental justicerdquo77 security ldquoagainst unreasonable search and seizurerdquo78
and ldquothe right not to be arbitrarily detained or imprisonedrdquo79 are described very
generally However they were chosen deliberately as it was recognized that in each case
there is an inherent tension between imposing security measures and fundamental rights
and freedoms Determining which is paramount will be based on the facts of each case
76 Ibid p 9177 Canadian Charter of Rights and Freedoms s 7 Part I of the Constitution Act 1982 being Schedule B to the Canada Act 1982 (UK) 1982 c 1178 Ibid s 879 Ibid s 9
35
SECTION 5 LEGAL ANALYSIS OF THE PUBLIC WORKS PROTECTION ACT
A Legal Analysis of the Legislation
Many stakeholders have questioned the constitutional validity of the PWPA and O Reg
23310 The Ontario Ombudsman seriously questioned whether O Reg 23310 could
pass ldquoconstitutional musterrdquo80 The CCLA suggested that the broad police powers
granted under the PWPA were inconsistent with the Charter81
To the same effect were comments made by Premier Dalton McGuinty who described
the PWPA as ldquoan archaic law that was used to undermine Torontoniansrsquo civil rights
during the G20rdquo82 He elaborated83
The issue is whether itrsquos appropriate given our present-day values and given an old law which I am confident doesnrsquot strike the balance that you and I would want today in terms of public safety and individual freedom of expressionhellipWhen you start talking about civil rights individual freedoms yoursquore talking about those things that in fact define us as a free and democratic societyhellipItrsquos something that is real and meaningful and important to all of us
The Terms of Reference for this Review do not require that I conduct a constitutional
analysis of the PWPA I have however been asked to consider areas for reform and if
appropriate make specific recommendations for amendment or repeal This does require
that I therefore consider whether the legislation may be vulnerable to constitutional
challenge
Section 2(b) of the Charter guarantees everyone the fundamental freedom of expression
The definition of ldquoexpressionrdquo has been interpreted broadly ldquoActivity is expressive if it
80 Supra note 32 at para 23381 Supra note 26 p 982 Robert Benzie and Rob Ferguson ldquoMcGuinty shifts focus to fixing G20 lawrdquo Toronto Star (10 December 2010) online thestarcom lthttpwwwthestarcomnewscanadaarticle905436--mcguinty-shifts-focus-to-fixing-g20-lawgt 83 Ibid
36
attempts to convey meaningrdquo84 While freedom of expression is not absolute there is
very little that is not considered expression However expression that advocates violence
is not protected under s 2(b)85
The Supreme Court of Canada in Committee for the Commonwealth of Canada v
Canada held that s 2(b) ldquodoes not encompass the right to use any and all government
property for purposes of disseminating onersquos views on public matters but I have no doubt
that it does include the right to use for that purpose streets and parks which are dedicated
to the use of the public subject no doubt to reasonable regulation to ensure their
continued use for the purposes to which they are dedicatedrdquo86 It seems clear that
protesting in public streets is a form of expression protected by s 2(b) Protesting at an
intergovernmental conference is clearly expressive in nature
In challenges alleging that a statute contravenes s 2(b) of the Charter a court would
examine whether the purpose or effect of a law contravenes section 2(b)87 There is no
reason to suggest that the purpose of the PWPA was to infringe the freedom of
expression The purpose of the PWPA is to protect important public infrastructures A
court would then have to consider whether the effect of the PWPA may have resulted in
an infringement of freedom of expression
O Reg 23310 defined significant portions of downtown Toronto as a ldquopublic workrdquo
Section 3(c) of the PWPA allows peace officers to refuse entry into public works which
therefore limits the areas in which protesters could express themselves By creating the
84 Irwin Toy Ltd v Queacutebec (Attorney General) [1989] 1 SCR 927 at 96885 Ibid at 97086 [1991] 1 SCR 139 at 165-16687 Peter Hogg Constitutional Law of Canada loose-leaf (consulted on 7 January 2011) 5th ed (Toronto Thomson Reuters Canada Limited 2007) at 43-6
37
relatively large security perimeter designated by the regulation individuals may allege
they were not permitted to communicate directly with those they were protesting against
Furthermore individuals could not communicate in public places such as public streets
where the right to freedom of expression has previously been found to exist88
Commissioner Ted Hughes completed an interim report following a public hearing into
the complaints regarding events that took place with respect to the Asia Pacific Economic
Cooperation (APEC) Conference in Vancouver British Columbia in November 1997
Commissioner Hughes recommended that generous opportunity should be afforded to
peaceful protesters to be seen in their protest activities by guests at the event89
Section 7 of the Charter provides that ldquoEveryone has the right to life liberty and security
of the person and the right not to be deprived thereof except in accordance with the
principles of fundamental justicerdquo The PWPA raises issues regarding the liberty and
security of the person in providing for warrantless searches and stopping for
identification Furthermore vague laws offend two fundamental values of our legal
system90 Firstly individuals are not provided with sufficient guidance as to what
behaviour a law prohibits Secondly those in charge of enforcing the law are not
provided with clear guidance as to how to enforce it A vague law can lead to inconsistent
and arbitrary enforcement91
88 Supra note 86 89 Canada Commission for Public Complaints Against the RCMP APEC ndash Commission Interim Report (31 July 2001) at s 3111 (Commissioner Ted Hughes QC) online Commission for Public Complaints Against the RCMP lthttpwwwcpc-cppgccaprrrepphrapecapec-31-engaspxgt90 Supra note 87 at 47-60 91 ldquoA vague provision does not provide an adequate basis for legal debate that is for reaching a conclusion as to its meaning by reasoned analysis applying legal criteria It does not sufficiently delineate any area of risk and thus can provide neither fair notice to the citizen nor a limitation of enforcement discretion Such
38
As described by Professor Hogg92
The requirement that any limit on rights be prescribed by law reflects two values that are basic to constitutionalism or the rule of law First in order to preclude arbitrary and discriminatory action by government officials all official action in derogation of rights must be authorized by law Secondly citizens must have reasonable opportunity to know what is prohibited so that they can act accordingly Both these values are satisfied by a law that fulfils two requirements (1) the law must be adequately accessible to the public and (2) the law must be formulated with sufficient precision to enable people to regulate their conduct by it and to provide guidance to those who apply the law
As I stated earlier the phrase ldquoany approach theretordquo contained in s 3(a) of the PWPA is
potentially vague No criteria are provided to assist in determining when one is on ldquoany
approach theretordquo A phrase such as ldquoany approach theretordquo is subject to many potential
interpretations It is arguable that this language does not provide reasonable guidance for
individuals to obey the law and for the law to be consistently enforced
Section 8 of the Charter provides that ldquoEveryone has the right to be secure against
unreasonable search or seizurerdquo A warrantless search or seizure is only reasonable if the
search was authorized by law the law itself is reasonable and the manner in which the
search carried out was reasonable93 The fact that no reasonable or probable suspicions
are needed to carry out a search pursuant to s 3(b) of the PWPA raises some issues The
only prerequisite to such a search is that the person or vehicle being subjected to a search
is entering or attempting to enter a public work
a provision is not intelligible to use the terminology of previous decisions of this Court and therefore it fails to give sufficient indications that could fuel a legal debaterdquo (R v Nova Scotia Pharmaceutical Society [1992] 2 SCR 606 at 639-640) 92 Supra note 87 at 38-1293 R v Nolet [2010] SCJ No 24 at para 21
39
Whether the PWPArsquos s 3(b) authority to undertake warrantless searches is ldquoreasonablerdquo
depends on the reasonableness of the impact on the subject of the search ldquoThe
individuals reasonable expectation of privacy must of course be balanced against the
public interest in effective law enforcementrdquo94 It is harder to justify a warrantless search
where the reasonable expectation of privacy is higher For example interference with
bodily integrity will raise the standard of reasonableness Conversely in situations where
people expect to have a lower level of privacy the standard to prove reasonableness is
lower
One rightfully has some expectation of privacy when in public but it does not rise to the
level of privacy that one expects in onersquos home The expectation of privacy further
decreases when one attempts to enter a ldquopublic workrdquo especially in the context of a
secured barrier to an intergovernmental conference
Section 9 of the Charter provides that ldquoEveryone has the right not to be arbitrarily
detained or imprisonedrdquo95 Under s 3(a) of the PWPA a person entering or attempting to
enter or approach a public work must provide his or her name and address and state the
purpose for which he or she desires to enter the public work In order for a guard or
peace officer to carry out this duty the guard or peace officer may ldquostoprdquo the person from
further approaching or entering the public work and the person is not permitted under the
statute to decide not to enter By so doing it is arguable the guard or peace officer has
assumed control over the movement of the individual by a demand or direction The
94 R v Rao [1984] OJ No 3180 at para 79 (CA)95 ldquoDetention under s 9hellipof the Charter refers to a suspension of the individualrsquos liberty interest by a significant physical or psychological restraint Psychological detention is established either where the individual has a legal obligation to comply with the restrictive request or demand or a reasonable person would conclude by reason of the state conduct that he or she had no choice but to complyrdquo (R v Grant [2009] SCJ No 32 at para 44)
40
PWPA provides for a significant legal consequence if the demand or direction is not
followed since ldquoEvery person who neglects or refuses to comply with a request or
direction made under this Act by a guard or peace officer and every person found upon a
public work or any approach thereto without lawful authority the proof whereof lies on
him or her is guilty of an offence and on conviction is liable to a fine of not more than
$500 or to imprisonment for a term of not more than two months or to bothrdquo96
Pursuant to s 3(b) of the PWPA a guard or peace officer may search any person entering
or attempting to enter a public work These searches would necessitate the detention of a
person If a guard or peace officer performs such a search he or she has taken control
over the movement of the person by a demand or direction The same serious legal
consequence results from failing to obey this demand or direction as that which results
from failing to obey the demand or direction pursuant to s 3(a) of the PWPA As a
result ldquodetentionsrdquo could occur pursuant to both s 3(a) and s 3(b) of the PWPA
The question that would need to be addressed in any challenge to the PWPA is whether
the detentions permitted by the PWPA are arbitrary in nature The use of the term ldquoany
approach theretordquo is vague and imprecise A person could be deemed to be on ldquoany
approach theretordquo a great distance from the entrance of a public work and their detention
might very well be arbitrary In addition the fact that the guards and peace officers
determine the boundaries of the ldquoapproachesrdquo which cannot be contested seems
arbitrary as well as who they chose to search
96 It should be noted that not all communications with state authorities and police officers will amount to a detention The question is whether a person may reasonably believe that he or she is free to refuse to comply
41
Section 11(d) of the Charter provides that ldquoAny person charged with an offence has the
right to be presumed innocent until proven guilty according to law in a fair and public
hearing by an independent and impartial tribunalrdquo This requires that the Crown have the
burden of proving the guilt of an individual charged with an offence97 Provisions that
place the burden on the accused to disprove on the balance of probabilities an essential
element of an offence raises s 11(d) concerns because convictions would be possible
even if reasonable doubt existed98 The presumption of innocence is not only infringed
upon by a requirement that an accused disprove an essential element of an offence but
also any requirement on an accused to prove a fact on the balance of probabilities to
avoid conviction
Section 5(1) of the PWPA states that ldquoEvery person who neglects or refuses to comply
with a request or direction made under this Act by a guard or peace officer and every
person found upon a public work or any approach thereto without lawful authority the
proof whereof lies on him or her is guilty of an offence and on conviction is liable to a
fine of not more than $500 or to imprisonment for a term of not more than two months or
to bothrdquo For the offence of being found upon a public work or on any approach to a
public work without lawful authority the burden of proof has been ldquoshiftedrdquo from the
Crown to the accused to prove lawful authority
As the foregoing analysis reveals there are certainly many concerns that arise when one
places the PWPA under the lens of the Charter However the rights and freedoms
provided by the Charter are not absolute They are ldquosubject only to such reasonable
97 R v Oakes [1986] 1 SCR 10398 Ibid at 132
42
limits prescribed by law as can be demonstrably justified in a free and democratic
societyrdquo99
In assessing whether a law which infringes the Charter is saved by s 1 a court examines
both the object of the law and the measures taken to achieve that objective A lawrsquos
objective achieves the status of being sufficiently important to justify overriding a
Charter right only when it is consistent with the values of a free and democratic society
The objective must relate to pressing and substantial concerns and not concerns that are
trivial and must be focussed on ldquothe realization of collective goals of fundamental
importancerdquo100 The measures adopted must be ldquorationally connectedrdquo to the objective of
the law101 The measures ldquoshould impair lsquoas little as possiblersquo the right or freedom in
questionrdquo102 Furthermore there must be ldquoa proportionality between the effects of the
measures which are responsible for limiting the Charter right or freedom and the
objective which has been identified as of lsquosufficient importancersquordquo103
An issue that may affect whether the potential limitation on rights and freedoms of the
PWPA and O Reg 23310 were ldquoprescribed by lawrdquo is whether the regulation was
adequately accessible to the public The Ontario Ombudsman the CCLA and the Ontario
Bar Association (ldquoOBArdquo) all noted a lack of notice regarding O Reg 23310 and its
effects prior to and during the G20 While the text of the regulation was available prior
99 Charter s 1 The Superior Court of Quebec decision of Tremblay v Queacutebec (Attorney General) [2001] JQ No 1504 (CS) involved an interim injunction brought by an applicant who was denied entry into the secured perimeter during the 2001 Summit of the Americas in Queacutebec City The applicant sought an injunction to either eliminate the security barrier or to be given a pass to let him within the secured perimeter Even though the Court held that the erection of the security zone violated the applicantrsquos right to freedom of expression and peaceful assembly The court held that the infringement was ldquodemonstrably justified in a free and democratic societyrdquo100 Supra note 97 at 136101 Ibid at 139102 Ibid103 Ibid
43
to the G20 it was only available on a website not frequently accessed by the public
Since O Reg 23310 was not published in The Ontario Gazette until after it was
revoked it may be that the regulation was not adequately accessible to the public
Reverse onus offences have been found to be ldquorationally connectedrdquo when there is plainly
a rational connection between the proven fact and the fact to be presumed Reverse
onuses have also been upheld when the burden placed on the Crown would be virtually
impossible to meet (such as proving sanity)104 Even if the accused only has the burden
of disproving the fact that heshe did not have lawful authority to be in a public work or
on an approach thereto there may not be a rational connection between the proven fact
and the fact to be presumed
The history of threats and violence at previous intergovernmental conferences
demonstrated that the protection of G20 participants was a pressing and substantial
concern However given the broadness of the PWPA every exercise of it raises the
potential for Charter scrutiny
Recommendation
Given the public policy considerations I have raised regarding the PWPA and Charter
concerns that could arise I recommend that the PWPA be repealed after the Province has
considered potential policy and security gaps as a result of its repeal
B Other uses of the Public Works Protection Act
It appears from my consultations with stakeholder groups that if the PWPA is repealed
104 R v Chaulk [1990] 3 SCR 1303 at 1340
44
there are two areas which may require legislation to provide specific peace officer
powers These two areas are court security and the protection of nuclear power facilities
and other power generating infrastructures
1 Court Security
During my decade as Ontariorsquos Attorney General (1975 to 1985) there were three
murders in provincial courthouses as well as many threats to members of courthouse staff
and others As violent acts in courthouses can be anticipated courtroom security is often
required
Individuals are compelled to go to court for a variety of reasons such as appearing as an
accused as a witness or for jury duty To provide protection to those who work there or
are compelled to attend an adequate level of court security may require a search without
warrant of each and every individual who seeks to enter a courthouse It is not reasonable
to require prior judicial authorization for each search that takes place
The courts have considered the constitutionality of these provisions of the PWPA in
conjunction with section 137 of the Ontario Police Services Act in the context of court
security
Section 137 of the Ontario Police Services Act imposes a responsibility on municipal
police services boards to secure the premises where court proceedings are conducted and
includes
1 Ensuring the security of judges and of persons taking part in or attending proceedings
45
2 During the hours when judges and members of the public are normally present ensuring the security of the premises
3 Ensuring the secure custody of persons in custody who are on or about the premises including persons taken into custody at proceedings
4 Determining appropriate levels of security for the purposes of paragraphs 1 2 and 3
In R v Campanella105 Ms Campanella was attending the John Sopinka Courthouse in
Hamilton At the courthouse there were signs posted stating that those who entered
would be searched for weapons When Ms Campanellarsquos bag was searched marijuana
was found and she was charged with the possession of marijuana She argued that her s
8 Charter protection against unreasonable search and seizure had been violated and the
marijuana discovered during the search should therefore be excluded as evidence The
trial judge and the summary convictions appeal court rejected the section 8 Charter
argument and the appellant appealed to the Ontario Court of Appeal
The Ontario Court of Appeal agreed that ldquogiven the importance of the government
objective and the context in which these searches take place it is reasonable to authorize
warrantless searches of those entering courthouse facilitiesrdquo106 The Court stated ldquothe
only effective way to diminish the risk in a large courthouse is to subject everyone
without prior security clearance to some kind of inspection I can see no other feasible
means of achieving the aimrdquo107
The Court also pointed out the concern relating to the erosion of the benefits and
105 [2002] OJ No 5104 (SCJ) affrsquod [2005] OJ No 1345 (CA) [ldquoCampanellardquo]106 R v Campanella [2005] OJ No 1345 at para 17 (CA)107 Ibid at para 19
46
protections conferred by s 8 of the Charter108
I am sensitive to the concern that we should not erode the benefits and protections of s 8 by gradually sanctioning ever-greater intrusions into privacy because of unfounded fears We should not lightly accept that searches in public places are justified solely because people have become used to them and expect them However the record in this case establishes the justification for the kinds of searches carried out in this case
Ultimately the appeal was dismissed and s 137 of the Police Services Act and s 3(b) of
the PWPA) were held to comply with s 8 of the Charter109
In its consultations with me the OBA similarly stated that the existing nature of court
security is necessary and is generally ldquowell toleratedrdquo At the same time however it
submits that the security regime should not be ldquoshoehornedrdquo into the PWPA regime and
that it would be preferable to provide a legislative framework tailored for the specific
security requirements While the PWPA has been relied upon as support for the exercise
of powers by the police in providing court security the OBA submits that the PWPArsquos
ldquosingle security schemerdquo which declares something a ldquopublic workrdquo is an ldquoawkward
blunt instrument in a world where more specialized tools are necessaryrdquo When
warrantless searches are being done on a routine basis it is advisable to have specific
legislation providing peace officers with such power
Recommendation
Court security legislation is currently in place in many jurisdictions across Canada and
contain provisions that permit warrantless searches of persons wanting to access a
108 Ibid at para 25109 The Court in R v SS [2005] OJ No 5002 (SCJ) agreed with the findings and rationale of the Court of Appeal in Campanella
47
courthouse The constitutional validity of such legislation in Manitoba was upheld by that
provincersquos highest court110
Given the ongoing need for warrantless searches at courthouses the Province of Ontario
should consider specific court security legislation in Ontario to support the security
measures in our courthouses if the PWPA is to be repealed taking into consideration the
responsibilities of the municipal police services boards provided in s 137 of the Police
Services Act This legislation should only be passed after proper notice consultation and
legislative debate
2 Power Generating Infrastructures
It is clear from the submissions that I received from representatives of OPG and the
Canadian Nuclear Safety Commission (ldquoCNSCrdquo) that the PWPA currently plays a role in
providing security officers with the powers to secure power generating infrastructures
including the ability to carry firearms and the ability to stop and require identification
from those in proximity to those nuclear plants
Security is of the utmost importance in protecting a nuclear power plant Members of the
public do not need to access a nuclear or similar power facility unless employed at the
facility or carrying out work for the facility111
The security of areas within nuclear power plants is governed by the Nuclear Security
110 R v Lindsay [2004] MJ No 380 (CA) 111 Though the discussion focuses on nuclear power plants I have been informed that other power generating infrastructures use the PWPA to designate their security officers as guards As a result if the PWPA is repealed it will be necessary to broaden the consultations in relation to these other power generating infrastructures
48
Regulations112 Every nuclear power plant must be located within a ldquoprotected areardquo113
This protected area is the area within a fenced perimeter which is alarmed and
continually patrolled This area must be equipped with devices that employ two
independent systems to detect intrusion into the area114 The Nuclear Security
Regulations also provide detailed specifications for the barrier which must enclose the
protected area115 In addition licensees must ldquoidentify all vital areas and implement
physical protection measures ndash including access control and measures designed to delay
unauthorized accessrdquo116
The Nuclear Security Regulations also provide detailed provisions regarding entry into
protected areas No person can ldquoenter a protected area without physical proof of the
recorded authorization of the licenseerdquo117 Further to this on entry into a protected area
ldquothat personrsquos identity shall be verified by two separate personnel identity verification
systems one of which is an access card reader and the other of which is a biometric
personnel identity verification devicerdquo118 Licensees must also ldquoensure that vehicle
portals are used for the entry and exit of land vehicles into and from a protected areardquo119
Physical protection measures are also required to reduce the chance of a forced land
vehicle entry into a protected area120
The power to conduct searches upon entry to a protected area is also provided by the
112 SOR2000-209 113 Ibid s 8114 Ibid s 11(a)(i)115 Ibid s 9116 Ibid s 141117 Ibid s 17(1)118 Ibid s 171119 Ibid s 91(1)120 Ibid s 91(4)
49
Nuclear Security Regulations Signs must be posted that are visible to people about to
enter the protected area stating that they must allow a nuclear security officer (ldquoNSOrdquo) to
ldquosearch them and everything in their possession including any land vehicle for weapons
and explosive substancesrdquo121 In addition when leaving the protected area people must
allow NSOs to ldquosearch them and everything in their possession including any land
vehicle for Category I II or III nuclear materialrdquo122 People are not permitted to enter or
leave a protected area unless these searches are carried out123 The Nuclear Security
Regulations provide for the method of search including ldquoa hand-held scanner a walk-
through scanner or any similar devicerdquo124 In addition if an NSO determines it
necessary a frisk search can be carried out by a person of the same sex125
I have been informed that the area outside of but adjacent to the ldquoprotected areardquo is
referred to as the ldquocontrolled areardquo This area includes roadways and waterways within
the nuclear facilityrsquos property boundaries adjacent to or in close proximity to the nuclear
power plantrsquos protected area and may be generally accessible to the public
As a result of the September 11 2001 terrorist attacks the Nuclear Security Regulations
were amended to require that high security nuclear facilities maintain an on-site armed
Nuclear Response Force (ldquoNRFrdquo)126 The NRF is composed of specialized NSOs
Section 32 of the Nuclear Security Regulations requires the NRF to be capable of making
an effective intervention taking into account the threat
121 Ibid s 27(1)(a)122 Ibid s 27(1)(b)123 Ibid s 27(2)124 Ibid s 27(5)(a)125 Ibid s 27(5)(b)126 Ibid s 32
50
Members of the NRF are mandated by the Nuclear Security Regulations to be ldquotrained in
the use of firearms authorized to carry firearms in Canada and qualified to use themrdquo127
However to satisfy this requirement the NRF resorts to the PWPA since the federal
regulations do not authorize the NRF to carry firearms without a licence However
under s 2(1) of the PWPA NSOs are designated as ldquoguardsrdquo with the powers of a peace
officer most significantly to carry and use firearms without having to be licensed128
Such a designation also enables the OPG to acquire and dispose of firearms
In the consultations I had with the OPG and the CNSC they advised me that NSOs
receive training equivalent to Canadian police standards and that NRF officers receive
training equivalent to federal and provincial police tactical team requirements
Another aspect of the PWPA used to secure nuclear power plants relates to powers
exercised by NSOs in ldquocontrolled areasrdquo The federal regulations do not provide the
NSOs with any power to demand identification within this area However pursuant to
the PWPA as appointed ldquoguardsrdquo the NSOs have the power to demand identity
verification in the controlled area They also have the authority to arrest anyone who
obstructs NSOs in the performance of their duties under the PWPA
In addition to using the PWPA to secure the controlled areas I have been advised by the
OPG that NSOs use powers pursuant to the PWPA to secure areas within 100 metres of a
nuclear facilityrsquos property line immediately adjacent to the controlled area These powers
are exercised under the broad language of the PWPA regarding ldquoapproaches to public
127 Ibid s 1 (on-site nuclear response force definition)128 Section 11707 of the Criminal Code exempts peace officers from licensing requirements for possessing firearms and other prohibited and restricted weapons
51
worksrdquo This is an illustration of the problem with the vagueness of this language in the
legislation As these powers are exercised on public land they could be challenged as a
potential infringement on individual rights and freedoms However I have been advised
that there have been no such incidents to date The need to ensure the security of these
facilities must be taken into the balance
NSOs must be able to monitor and control access to the controlled areas and areas close
to a nuclear power plantrsquos property line This provides for a more secure perimeter
around these facilities They need authority to challenge individuals acting in a suspicious
manner or conducting surveillance of nuclear facilities The OPG has informed me that
areas outside a nuclear facilityrsquos property line immediately adjacent to the controlled
area are still close enough to take advantage of the short distance to conduct intelligence
using high-powered surveillance equipment These nuclear power plants are not located
on isolated islands and are therefore vulnerable Both the Pickering Nuclear Generating
Station and the Darlington Nuclear Generating Station operate within major urban areas
being 30 km and 60 km east of downtown Toronto respectively I am advised that
previous events such as ldquoThe Toronto 18rdquo129 have shown that those intent on targeting
vital infrastructure such as power generating facilities often use reconnaissance and
intelligence gathering as precursor tactics
Recommendation
If the PWPA is to be repealed it is imperative that those who secure our nuclear and
power generating facilities be given the requisite specific legislative powers to do so
129 See for example ldquoLast 2 Toronto 18 accused found guiltyrdquo CBC News (23 June 2010) online cbcca lthttpwwwcbccanewscanadatorontostory20100623toronto-18-verdicthtmlgt
52
The source for these powers should be set out in the federal Nuclear Security
Regulations However if this is not a desired option the Government of Ontario must
consider specific legislation setting out the specific powers required to properly secure
these facilities and the specific location in which these powers can be exercised Such
legislation should not be passed without proper notice consultation and legislative
debate
53
SECTION 6 CONCLUSION
The PWPA was enacted in 1939 to support the war effort At the time the protection of
Ontariorsquos hydroelectric facilities from sabotage was of particular concern Since then the
PWPA has been used to provide the legal foundation for the powers exercised by the
police in providing court security and even more recently by the OPG in securing
nuclear power facilities In June 2010 the PWPA was used to provide powers to secure
intergovernmental conferences The vagueness of the PWPA permits it to be used in
situations when it is arguably not necessary and potentially abusive In my view the
PWPA has been used for purposes beyond its original intent
The time for the PWPA seems to have passed If the Government of Ontario enacts as I
have suggested specific legislation to provide for courthouse security and power
generating infrastructure security it would appear that there is no longer a need for the
PWPA I am also mindful of the existence of counter-terrorism and emergencies
legislation to deal with these situations as they arise
ldquoIn determining the boundaries of police powers caution is required to ensure the proper
balance between preventing excessive intrusions on an individualrsquos liberty and privacy
and enabling the police to do what is reasonably necessary to perform their duties in
protecting the publicrdquo130 The overly broad and vague language of the PWPA does not
strike this required balance with individual rights and freedoms
The late Justice Jackson of the United States Supreme Court stated that every
emergency power once conferred ldquolies about like a loaded weapon ready for the hand of
130 R v Clayton [2007] 2 SCR 725 at 742
54
any authority that can bring forward a plausible claim of an urgent needrdquo131 The need to
protect the public must be balanced with the requirement to preserve fundamental rights
and freedoms
Yet at the same time ldquoCanadians are entitled to demand the best public order policing
possible from their governmentrdquo132 There is no question that we live in a different world
post 911 We live in difficult times with constant threats both domestically and from
abroad The police clearly need to be given adequate powers to carry out their duties
The police use their expertise on a daily basis to assess the powers they require In
instances when they take action that exceeds their powers their actions are examined by
various mandated bodies This process I believe results in the proper balance between
police powers and individual rights and freedoms Therefore any legislation that purports
to grant special police powers must be specific and direct and developed in consultation
with stakeholders and tested through thorough debate in our transparent democratic
system
131 Korematsu v United States 323 US 214 (1944)132 Supra note 26 p 8
55
work or any approach thereto without lawful authority the proof whereof lies on him or her is guilty of an offence and on conviction is liable to a fine of not more than $500 or to imprisonment for a term of not more than two months or to both
Arrest (2)A guard or peace officer may arrest without warrant any person who neglects
or refuses to comply with a request or direction of a guard or peace officer or who is found upon or attempting to enter a public work without lawful authority RSO 1990 c P55 s 5
Regulations 6The Lieutenant Governor in Council may make regulations
(a) providing for the organization co-ordination supervision discipline and control of guards
(b) defining the areas that constitute approaches to public works either generally or with regard to a particular public work
(c) respecting any matter necessary or advisable to carry out effectively the intent and purpose of this Act RSO 1990 c P55 s 6
1 Discussion of Key Sections
(a) Definition of ldquoPublic Workrdquo
Section 1 defines ldquopublic workrdquo very broadly There are at least three classes of public
works The first class includes certain transportation infrastructure (ldquorailway canal
highway bridgerdquo) energy infrastructure (ldquopower works including all property used for
the generation transformation transmission distribution or supply of hydraulic or
electrical power gas worksrdquo) other public utilities (ldquowater works public utilityrdquo) and
other ldquoworksrdquo generally (ldquoor other workrdquo) This first class of public works may be
publicly or privately owned (ldquoowned operated or carried on by the Government of
Ontario or by any board or commission thereof or by any municipal corporation public
utility commission or by private enterprisesrdquo)
The second class of defined ldquopublic worksrdquo includes all provincial and municipal
buildings ldquoPublic buildingrdquo is not defined It would appear to clearly include buildings
7
such as the Legislative Assembly courthouses and city halls and likely includes
provincially or municipally owned buildings used for governmental purposes It would
also seem to include provincially or municipally owned buildings used for other
purposes such as libraries for example
The third class of ldquopublic worksrdquo includes any other building place or work designated
as a public work by the Lieutenant Governor in Council The word ldquoplacerdquo would appear
to be a very broad term that could include a public park for example The area
designated by O Reg 23310 fell into this class of ldquopublic workrdquo
(b) Appointment and Powers of Guards and Peace Officers
Section 2 of the PWPA provides for the appointment of ldquoguardsrdquo the powers and duties
of peace officers and guards and the penalties for any breach of duty by these peace
officers and guards The PWPA provides that anyone who is a head of a board
commission or other body having charge over a public work can appoint a guard This is
very broad and arguably allows for the appointment of a private army by someone
ldquohaving charge ofrdquo a public work whoever that may be Pursuant to s 2(2) the ldquoguardsrdquo
have the same powers as a ldquopeace officerrdquo
Section 3 sets out the powers a guard or peace officer acquire pursuant to the PWPA
including that a guard may require people entering or approaching a public work to
identify themselves and to state the purpose for which they desire to enter the public
work In addition the guard or peace officer may search without warrant any person or
vehicle entering or attempting to enter a public work The guard or peace officer can
8
refuse to permit a person to enter a public work and can use as much force as necessary in
this endeavour
(c) Boundaries of Public Work
Section 4 provides that a statement under oath by an officer or employee of the person or
entity operating or having control of a public work regarding the boundaries of the public
work serves as conclusive evidence with respect to the boundaries
(d) Offence Power of Arrest
Section 5 provides that any person who neglects or refuses to comply with a request or
direction made by a guard or peace officer is guilty of an offence In addition a person
who enters a public work or an approach to a public work without lawful authority is
guilty of an offence A person found guilty of an offence is liable to a fine of not more
than $500 andor imprisonment of not more than two months A guard or peace officer
has the power to arrest without warrant any person who refuses to comply with a request
or direction of a guard or peace officer and who enters or attempts to enter a public work
without lawful authority
(e) Regulations
Section 6(b) provides that the Lieutenant Governor in Council may define the areas that
constitute approaches to public works while s 6(c) permits regulations to be made
regarding any matter necessary to carry out the intent and purpose of the PWPA
D Events Leading to Passage of O Reg 23310
There was no apparent reference to the possible use of the PWPA until fairly late in the
planning process for the security for the G20 Summit The Province of Ontario originally
9
attempted to obtain support for its security measures through reliance on a federal statute
the Foreign Missions and International Organizations Act (ldquoFMIOArdquo) which provides
that the RCMP can take ldquoappropriate measuresrdquo to ensure the proper functioning of an
intergovernmental conference ldquoin a manner that is reasonable in the circumstancesrdquo8
On May 7 2010 John Burke Deputy Minister of Community Safety and Correctional
Services of Ontario wrote to William Baker Deputy Minister of Public Safety Canada9
stating that security would be enhanced by the existence of an agreement pursuant to s
101(4) of the FMIOA which provides that the Federal Minister of Public Safety may
enter into arrangements with the government of a province concerning the responsibilities
of members of the RCMP and provincial municipal police forces with respect to
ensuring security for the proper functioning of a conference
On June 11 2010 the Provincial Deputy Minister received a reply10 from the Federal
Deputy Minister indicating that such an agreement would not be required for the
Summits since ldquothe current suite of powers and authorities that peace officers possess at
common law or by virtue of any other federal or provincial Act or regulation were
sufficient for the G8 and G20 Summitsrdquo
The Federal Deputy Minister was clear that in his view the police had sufficient authority
at common law and in statute to secure these conferences Similarly the OPP were of the
view that it was not necessary for the police forces to have any additional police powers
8 SC 1991 c 41 s 101(2) Attached as Appendix 5 is a copy of selected sections of the FMIOA 9 Attached as Appendix 6 is a copy of the May 7 2010 letter10 Attached as Appendix 7 is a copy of the letter received on June 11 2010
10
other than those already conferred by virtue of common law and statute (excluding the
PWPA) in order to secure the interdiction zones for the Summits
On May 12 2010 Chief William Blair of the TPS wrote to the Honourable Rick
Bartolucci Minister of Community Safety and Correctional Services11 stating that a
ldquocornerstonerdquo of the TPS security plan for the G20 Summit would be the establishment of
a security perimeter in an area around the Metro Toronto Convention Centre The
purpose of this security perimeter as explained in the letter was to ldquoensure the safety and
security of those attending the Summit the Summit site itself and people and property
within the area close to the Summit siterdquo Chief Blair indicated that the TPS would rely
upon the authority granted to it pursuant to the common law and if certain conditions are
met the FMIOA12 to establish and control the security perimeter However he believed
that the provisions of the PWPA ldquowould also offer legal support for the extraordinary
security measuresrdquo he believed would be necessary Chief Blair therefore requested ldquothe
Lieutenant Governor in Council to designate the area of or highways within the intended
security perimeter as a public work for the period from June 21 2010 through the end of
the Summit on June 27 2010rdquo A detailed description of the area requested to be
designated as a public work was provided to Minister Bartolucci as well as an aerial
photograph of the area
I am not aware that any organization publicly questioned the inherent police power to
erect fences defining the interdiction zone The Canadian Civil Liberties Association
11 See Appendix 312 This probably is in reference to s 101(4) of the FMIOA which provides the authority for the Minister of Public Safety and Emergency Preparedness to enter into arrangements with the government of a province concerning the responsibilities of members of the RCMP and members of the provincial and municipal police forces with respect to ensuring the security for the proper functioning of an intergovernmental conference
11
(ldquoCCLArdquo) published a document entitled ldquoProtecting civil liberties and human rights at
the G20 statement of concernsrdquo on May 21 201013 In this document the CCLA
expressed concern with the size of the security perimeter ldquoParticularly where there is a
primary fence to ensure safety around conference venues and delegate hotels any further
restrictions on mobility or protest must be fully and carefully justifiedrdquo14 However the
CCLA supported ldquothe overall goal of ensuring that the G20 is conducted in a manner that
is safe for delegates protesters and Toronto residents in generalrdquo15 and noted the
RCMPrsquos authority under the FMIOA There was no doubt expressed by the CCLA
concerning the power of police to erect security fences
By letter dated June 15 201016 Minister Bartolucci wrote to Chief Blair acknowledging
the request and stating in part
I agree that there are various sources of legal authority to support the security perimeter I also recognize the desirability of having additional sources of legal authority to ensure clarity regarding the ability of the Toronto Police Service to take the steps that it will be taking Accordingly I am pleased to inform you that a regulation has been made under the PWPA in response to your request
The Minister informed Chief Blair that O Reg 23310 had been filed with the Registrar
of Regulations and would come into force on June 21 2010 and would be revoked as of
June 28 2010 The area requested by Chief Blair to be designated as a ldquopublic workrdquo
was so designated in O Reg 23310
13 Canadian Civil Liberties Association Protecting civil liberties and human rights at the G20 statement of concerns May 21 2010 online Canadian Civil Liberties Association lthttpcclaorgwordpresswp-contentuploads201005G20-CCLA-Statement-of-Concernspdfgt14 Ibid p 415 Ibid p 316 Attached as Appendix 8 is a copy of the June 15 2010 letter
12
Four days earlier on June 11 2010 Mike McDonell the Assistant Commissioner of the
RCMP sent a letter to Chief Blair17 containing a thorough review of the statutory sources
of the RCMPrsquos duties and powers to secure intergovernmental conferences Assistant
Commissioner McDonell outlined the police authority to fully secure the G8 and G20
Summits
More specifically in relation to the Summits the RCMP will be taking measures to fulfill duties related to the protection of Internationally Protected Persons (IPPrsquos) that befall police in general and the RCMP in specific The official visit of the head of state or high ranking dignitary of a foreign country is an event that frequently engenders a real or apprehended threat to the preservation of peace which demands the adoption of proper and reasonable security measures in and by the host country
Furthermore Canada is a signatory of the United Nations Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons Including Diplomatic Agents In that regard Canada has specifically adopted laws requiring peace officers to protect IPPs as defined in section 2 of the Criminal Code in accordance with its international obligationshellip
Legal authorities also permit the RCMP to collaborate with other police forces such as the OPP in the fulfillment of its duties including in relation to securing the perimeter Such collaboration is essential in light of concurrent mandates of policing partners particularly in relation to the legal duties to preserve the peace and protect life and property
E O Reg 23310
On June 2 2010 Cabinetrsquos Legislation and Regulations Committee passed O Reg
23310 It was signed by the Lieutenant Governor on June 3 2010 and published on June
16 2010 on e-Laws a website maintained by the Government of Ontario not frequently
accessed by the public This website provides access to official copies of Ontariorsquos
statutes and regulations O Reg 23310 came into force on June 21 2010 and was
17 Attached as Appendix 9 is a copy of the June 11 2010 letter
13
revoked on June 28 2010 It was not published in The Ontario Gazette18 until July 3
2010 after it had already been revoked Section 23(2) of Ontariorsquos Legislation Act
200619 provides that a regulation is not effective against a person before the earliest of
when the person has actual notice of it the last instant on the day on which it is published
on the e-Laws website or the last instant of the day on which it is published in the print
version of The Ontario Gazette As a result though the technical requirements for
providing notice of O Reg 23310 were met I have concerns whether adequate notice
was given to the public especially in light of the fact that the regulation was not
published in The Ontario Gazette until it had already been revoked
The regulation set out the area where the security fence was to be erected and designated
that area as a ldquopublic workrdquo which then called into play all the powers provided by the
PWPA
ONTARIO REGULATION 23310
made under the
PUBLIC WORKS PROTECTION ACT
Made June 2 2010Filed June 14 2010
Published on e-Laws June 16 2010Printed in The Ontario Gazette July 3 2010
DESIGNATION OF PUBLIC WORKS
Designation 1 The following are designated as public works for the purposes of the Act 1 Everything described in clause (a) of the definition of ldquopublic workrdquo in section
1 of the Act that is located in the area described in Schedule 1 including without limitation and for greater certainty every sidewalk in that area
2 The places described in paragraphs 1 2 and 3 of Schedule 2
18 The Ontario Gazette contains Ontariorsquos legal notices and regulations19 SO 2006 c 21 Sched F
14
Revocation 2 This Regulation is revoked on June 28 2010
Commencement 3 This Regulation comes into force on the later of June 21 2010 and the day
it is filed SCHEDULE 1
AREA REFERRED TO IN PARAGRAPH 1 OF SECTION 1
The area in the City of Toronto lying within a line drawn as follows
Beginning at the curb at the southeast corner of Blue Jays Way and Front Street West then north to the centre of Front Street West then east along the centre of Front Street West to the east curb of Windsor Street then north along the east curb of Windsor Street to the centre of Wellington Street then east along the centre of Wellington Street to the centre of Bay Street then south along the centre of Bay Street to a point directly opposite the north wall of Union Station then west along the exterior of the north wall of Union Station to the centre of York Street then south along the centre of York Street continuing east of the abutments under the railway overpass and continuing south along the centre of York Street to the centre of Bremner Boulevard then west along the centre of Bremner Boulevard to the east curb of Lower Simcoe Street then south along the east curb of Lower Simcoe Street to the north curb of Lake Shore Boulevard West then west along the north curb of Lake Shore Boulevard West to the south end of the walkway that is located immediately west of the John Street Pumping Station and runs between Lake Shore Boulevard West and the bus parking lot of the Rogers Centre then north along the west edge of that walkway to the bus parking lot of the Rogers Centre then west along the south edge of the bus parking lot of the Rogers Centre to the west edge of the driveway running between the parking lot and Bremner Boulevard then north along the west edge of that driveway to the north curb of Bremner Boulevard then west along the north curb of Bremner Boulevard to the east curb of Navy Wharf Court then north along the east curb of Navy Wharf Court to the southwest point of the building known as 73 Navy Wharf Court then east along the exterior of the south wall of that building then north along the exterior of the east wall of that building to the curb of Blue Jays Way then north along the east curb of Blue Jays Way to the curb at the southeast corner of Blue Jays Way and Front Street West
SCHEDULE 2DESIGNATED PLACES REFERRED TO IN PARAGRAPH 2 OF SECTION 1
1 The area within the area described in Schedule 1 that is within five metres of a line drawn as follows Beginning at the south end of the walkway that is located immediately west of the John Street Pumping Station and runs between Lake Shore Boulevard West and the bus parking lot of the Rogers Centre then north along the west edge of that walkway to the bus parking lot of the Rogers Centre then west along the south edge of the bus parking lot of the Rogers Centre to the west edge of the driveway running between the parking lot and Bremner
15
Boulevard then north along the west edge of that driveway and ending at Bremner Boulevard
2 The area within the area described in Schedule 1 that is within five metres of a line drawn as follows
Beginning at the southwest point of the building known as 73 Navy Wharf Court then east along the exterior of the south wall of that building then north along the exterior of the east wall of that building and ending at the curb of Blue Jays Way
3 The below-grade driveway located between Union Station and Front Street West and running between Bay Street and York Street in the City of Toronto
F Information Given to Public Regarding Security Protocol
Attempts were made to inform the public about the security measures that would be in
place leading up to and throughout the G20 The City of Toronto in consultation with
the ISU produced an information article20 and flyers21 No mention is made in the article
or flyers of the PWPA or O Reg 23310 and the powers given to the police The City of
Toronto also prepared an advertisement which appeared in local newspapers22 The
original version of the advertisement made no reference to the fact that people would be
subject to a search when attempting to access the security perimeter although reference
was made to the requirement to show identification and to have a valid purpose for
entering the restricted area A later version of the advertisement included additional text
advising that anyone requesting access to the security perimeter may be subject to a
search However just as with the article and flyers no specific mention was made of the
PWPA or O Reg 23310
20 A million copies of the newsletter Our Toronto which contained an article entitled ldquoWhat to expect during the G20 ndash June 26 amp 27 2010rdquo were delivered to homes in the City of Toronto21 Approximately 10000 flyers were sent to homes and businesses within the affected area The flyercontained general information about security and the anticipated effects on traffic22 The advertisement appeared in the Toronto Star Toronto Sun and Metroland community papers
16
In the days leading up to and throughout the G20 Summit there was apparently a
misunderstanding on the part of the police regarding a purported ldquofive-metre rulerdquo This
confusion likely emanated from the ldquofive-metresrdquo referenced in Schedule 2 of O Reg
23310 However the purpose of Schedule 2 was to designate as ldquopublic work(s)rdquo three
specific private property locations on which the security fence was to be erected that were
not ldquopublic worksrdquo The remainder of the fence was on public sidewalks and streets
which are ldquopublic worksrdquo To ensure that the fence was located on a ldquopublic workrdquo the
drafters designated the area within five metres of the security fence in these three
locations as a ldquopublic workrdquo23 Unfortunately the wording of Schedule 2 was very
cumbersome and the relationship between the area defined in Schedule 1 and the five-
metre reference in Schedule 2 was difficult to understand
Because of this confusion unfortunately the message was conveyed that the regulation
provided for a five-metres zone outside the entire security fence and that therefore the
PWPA applied to this entire area24 The media reported during the G20 summit that the
police had ldquosweepingrdquo powers pursuant to the PWPA within five-metres outside of the
exterior security fence25 O Reg 23310 did not provide the police such authority
23 Attached as Appendix 10 is a copy of a map showing the three specific areas designated in Schedule 2 of O Reg 2331024 Jennifer Yang ldquoJust being near the G20 security zone can get you arrestedrdquo Toronto Star (25 June 2010) online thestarcom lthttpwwwthestarcomnewsgtatorontog20summitarticle828498--just-being-near-the-g20-security-zone-can-get-you-arrestedgt25 David Rider et al ldquoDalton McGuinty Bill Blair defend quiet boost in arrest powersrdquo Toronto Star (26 June 2010) online thestarcom lthttpwwwthestarcomnewsgtatorontog20summitarticle828974--dalton-mcguinty-bill-blair-defend-quiet-boost-in-arrest-powersgt
17
SECTION 3 COMMENTARY
A Public Policy Considerations
There are some overarching public policy considerations which affect the issues I have
been asked to address in the Terms of Reference
As stated earlier the legislation was the product of emergency World War II concerns
related to the possibility of enemy sabotage of important infrastructures The legislative
debates in September of 1939 were particularly concerned with the provincersquos
hydroelectric facilities However notwithstanding these apparently specific concerns
when drafted the definition of ldquopublic workrdquo is extraordinarily broad and from a policy
standpoint raises questions of overbreadth especially given the ability to designate
almost anything a public work In a mere definition section s 1 of the legislation allows
the Lieutenant Governor in Council to designate ldquoany other building place or workrdquo as a
ldquopublic workrdquo However taken to its logical conclusion an entire city or more could be
designated as a ldquopublic workrdquo The definition of ldquopublic workrdquo includes ldquoany provincial
and any municipal public buildingrdquo but ldquopublic buildingrdquo is not further defined thereby
creating an element of uncertainty as to the specific provincial and municipal buildings
captured by this definition While perhaps extreme measures in times of war require
flexibility in all other circumstances legislation of this nature requires limitations and a
more specialized approach
The expression ldquoprivate armyrdquo was used in the Ontario legislative debate in 1939
Theoretically at least private armies could be created through the use of the ldquoguardrdquo
appointing authority by the many individuals who are authorized to appoint guards
pursuant to the PWPA This authority was apparently in response to the Federal
18
Governmentrsquos refusal to assume through the Defence Department the responsibility of
guarding utilities and industries essential to the war effort While such a result might not
have been contemplated in a parliamentary democracy it is clearly unwise to leave such
a possibility open
Section 3 of the PWPA provides in part that a guard or a peace officer
(a) may require any person entering or attempting to enter any public work or any approach thereto to furnish his or her name and addresshellipand to state the purpose for which he or she desires to enter the public work in writing or otherwise
The primary problem I see with this section is the vagueness of the term ldquoapproach
theretordquo An approach could begin at a considerable distance from the public work
Section 6(b) also provides for the making of regulations ldquodefining the areas that
constitute approaches to public works either generally or with regard to a particular
public workrdquo
In addition s 3(b) of the PWPA provides that a guard or peace officer ldquomay search
without warrant any person entering or attempting to enter a public workrdquo This section
does not permit any person to abandon any attempt to enter a public work in order to
avoid being subjected to a warrantless search Such conduct is adopted by persons who
decide not to enter a secured courthouse in order to avoid a warrantless search
Section 4 provides that for the purposes of the PWPA the statement under oath made by
persons engaged in the operation of a public work ldquoas to the boundaries of the public
work is conclusive evidence thereofrdquo Section 4 should be considered with s 5(1) which
provides that ldquoevery person found upon a public work or any approach thereto without
lawful authority the proof whereof lies on him or her is guilty of an offencehellip(emphasis
19
added)rdquo The provision in s 4 that ldquothe statement under oathhellipis conclusive evidence
thereofrdquo appears to remove from a courtrsquos consideration what could be a legitimate
dispute as to the boundaries of a public work or the approach thereto Furthermore the
apparent reversal of the onus of proof regarding lawful authority to be found in a public
work or an approach found in s 5 is also troublesome from a policy and legal point of
view
Accordingly if utilized to the extreme many government officials could appoint many
private armies to restrict access to many (in fact any) public places where the mere
statement under oath by the private guard of the boundaries of the areas under restricted
access is conclusive proof thereof Such potential for abuse is beyond troubling to say
the least
B Review of other Public Reports
As is evident from the foregoing discussion many issues arise regarding the operation of
the PWPA in todayrsquos context These considerations and others also formed the basis of
concerns raised in public reports which I was asked to review
1 Reports of the Canadian Civil Liberties Association
The CCLA preliminary G20 report26 dealt with most of the police related events that
occurred in Toronto during the G20 conference during the weekend of June 26th and 27th
2010 I will only make reference to a few portions of the report that deal with the Terms
of Reference
26 Canadian Civil Liberties Association A Breach of the Peace ndash A Preliminary Report of Observations During the 2010 G20 Summit June 29 2010 online Canadian Civil Liberties Association lthttpcclaorgwordpresswp-contentuploads201006CCLA-Report-A-Breach-of-the-Peace-Preliminary-report-updated-July-8pdfgt
20
The report of the CCLA called for the repeal or significant amendment to the PWPA ldquoto
meet basic constitutional standardsrdquo27 The CCLA ldquosuggests that the broad police powers
granted under the Act are inconsistent with current Charter requirementsrdquo28
I agree with the observation of the CCLA that the provisions of the PWPA led to a ldquolack
of clarity as to the scope of the search and seizure powersrdquo29 which created many
difficulties and conflicts that probably could have been avoided I would also certainly
agree with a conclusory comment in this preliminary report that ldquoit is the duty of police
officers to act with fairness and equanimity toward all citizens in accordance with the law
of the country The presumption of innocence and the protection against arbitrary arrests
and detention are at the core of a commitment to justicerdquo30
The CCLA in partnership with the National Union of Public Employees organized
public hearings for two days in Toronto and one day in Montreal in November of 2010
which they referred to as a Citizens Inquiry The Citizens Inquiry heard from 63 members
of the public who had witnessed policing incidents or had been detained Several lawyers
and academics also participated in the hearing and offered commentary on the events of
the G20 from a legal or policing perspective including issues related to the PWPA A
report of the hearings titled ldquoG20 Toronto Breach of the Peace Public Hearingsrdquo was
released on February 28 2011 which also referred to the PWPA31
27 Ibid p 2228 Ibid p 929 Ibid p 1230 Ibid p 2131 Canadian Civil Liberties Association and the National Union of Public and General Employees G20 Toronto Breach of the Peace Public Hearings February 2011 online Canadian Civil Liberties Association lthttpcclaorgwordpresswp-contentuploads201102Breach-of-the-Peace-Final-Reportpdfgt
21
2 The Ontario Ombudsman Report
The Ontario Ombudsman commenced an investigation after receiving complaints relating
to a variety of issues concerning the G20 The Marin Report recognized that ldquotypically
international summits attract protests and protests can turn violent and even deadlyrdquo32
The report therefore does not quarrel with the requirement that a high level of security is
required for such events
The report in my view accurately describes the PWPA as ldquounique in Canada in terms of
the breadth of its reach and the powers it confershellipno other Canadian statute defining
lsquopublic worksrsquo contains provisions similar to those found in Ontariorsquos Actrdquo33
32 Ontario Ombudsman report Investigation into The Ministry of Community Safety and Correctional Servicesrsquo Conduct in Relation to Ontario Regulation 23310 under the Public Works Protection Act ldquoCaught in the Actrdquo by Andreacute Marin (Toronto Ombudsman of Ontario December 2010) online Ombudsman of Ontario lthttpwwwombudsmanoncamedia157555g20final1-enpdfgt (ldquoMarin Reportrdquo) at para 733 Ibid at para 97
22
SECTION 4 POWERS OF THE POLICE
Pursuant to the Terms of Reference I have been asked to consider for future purposes
whether the powers given to peace officers and guards under the PWPA are necessary to
protect public works secure intergovernmental conferences or for any other purposes
To answer that question it is necessary to assess whether the current common law and
statutory regime provide the police with sufficient powers to perform these vital services
A Common Law Powers and Powers Pursuant to Police Services Acts
The police have extensive common law powers that can be used in protecting and
securing intergovernmental conferences and in protecting public works It is necessary to
examine those powers in order to assess whether and what if any additional powers are
needed such as those provided by the PWPA
Of particular assistance in this regard is R v Knowlton34 where the Supreme Court of
Canada considered whether the powers possessed by peace officers at common law and
statute in securing an area for the protection of a foreign dignitary were lawful The
Supreme Court of Canada held that in order for the exercise of peace officer powers to be
lawful the powers must satisfy the two step test set out in R v Waterfield35 First the
power must be in furtherance of a lawful duty Traditional common law peace officer
duties include the preservation of the peace and the prevention of crime These common
law police duties amongst others are now statutorily enshrined in s 42(1) of Ontariorsquos
Police Services Act (and other provincial police services acts)36 The second part of the
test requires an evaluation of whether the conduct of the peace officer was ldquojustifiedrdquo To
34 [1974] SCR 443 [ldquoKnowltonrdquo]35 See for example R v Dedman [1985] 2 SCR 236 RSO 1990 c P15
23
do so one applies the standard of what is reasonably necessary in light of the totality of
the circumstances In evaluating whether the conduct of the peace officer was justified it
is important to consider ldquothe duty being performed the extent to which some interference
with individual liberty is necessary in the performance of that duty the importance of the
performance of the duty to the public good the nature of the liberty being interfered with
and the nature and extent of the interferencerdquo37
In Knowlton police in Edmonton cordoned off an area as part of the security
arrangements for the visit of Premier Kosygin of the USSR Premier Kosygin had been
assaulted in Ottawa a few days prior to his visit to Edmonton Knowlton entered the
secured area questioning the power of the peace officer to prevent his entry He was
arrested without a warrant and charged with obstructing a peace officer in the execution
of his duties Knowlton argued that the peace officer did not have the power to prevent
his entry and was not acting in the execution of his duty
The Supreme Court of Canada emphasized the heightened importance of security when
there are visiting foreign dignitaries38
It is notorious and of common knowledge that the official visit of the head of state or high rank dignitary of a foreign country friendly as either may be is an event that frequently engenders a real or apprehended threat to the preservation of peace and that calls therefore for the adoption of proper and reasonable security measures in and by the host countryhellipThe restriction of the right of free access of the public to public streetshellipwas one of the steps--not an unusual one--which police authorities considered and adopted as necessary for the attainment of the purpose aforesaid In my opinion such conduct of the police was clearly falling within the general scope of the duties imposed upon them
37 R v Mann [2004] 3 SCR 59 at 7938 Supra note 34 at 447-448
24
In addressing the first part of the Waterfield test the Court referenced provisions of the
Alberta Police Act and the Criminal Code and concluded that the conduct of the peace
officers fell within the general scope of the duties imposed upon them for example
preservation of the peace and prevention of crime39
According to the principles which for the preservation of peace and prevention of crime underlie the provisions of s 30 amongst others of the Criminal Code these official authorities were not only entitled but in duty bound as peace officers to prevent a renewal of a like criminal assault on the person of Premier Kosygin during his official visit in Canada In this respect they had a specific and binding obligation to take proper and reasonable steps The restriction of the right of free access of the public to public streets at the strategic point mentioned above was one of the steps--not an unusual one--which police authorities considered and adopted as necessary for the attainment of the purpose aforesaid In my opinion such conduct of the police was clearly falling within the general scope of the duties imposed upon them
In analyzing the second step of the Waterfield test the Court concluded that there was no
evidence indicating the police officers resorted to an unjustifiable use of the powers
associated with the duties imposed on them
The Court in Knowlton recognized broad police powers to cordon off areas as part of the
security arrangements involving internationally protected persons In addition the Court
found that the warrantless arrest in that case was not an unjustifiable or unreasonable use
of powers associated with the police duties to preserve the peace order public safety and
to enforce the law and prevent crime Finally the Court found that peace officers were
duty bound ldquoto prevent a renewal of a like criminal assault on the person of Premier
Kosygin during his official visit in Canadardquo40 Furthermore it stated the closing of public
39 Ibid 40 Ibid at 447
25
streets ldquowas one of the steps -- not an unusual one -- which police authorities considered
and adopted as necessaryrdquo41
The Knowlton decision clearly acknowledged that the police had the duty and authority to
establish and enforce a secured area to protect a foreign dignitary In order to carry out
these duties the police may do what is reasonably necessary in light of the totality of the
circumstances
Though Knowlton was decided prior to the enactment of the Canadian Charter of Rights
and Freedoms (the ldquoCharterrdquo) this does not in my view affect the clear statement by the
Supreme Court of Canada regarding the duty of the police under the common law and the
Alberta Police Act to provide this security While the facts of Knowlton were quite
compelling in relation to the obvious need to provide adequate security for Premier
Kosygin the decision is equally important authority regarding the general responsibilities
of the police at common law and statute in relation to the preservation of the peace
B Other Statutory Powers
1 Criminal Code
Some specific powers are provided to peace officers pursuant to the Criminal Code42
Section 31 gives peace officers the power to arrest an individual for breach of the peace
Peace officers can arrest those committing the breach of the peace or those who on
reasonable grounds heshe believe are about to join in or renew the breach of the peace
Peace officers also have powers at their disposal under ss 63-69 of the Criminal Code to
deal with the offences of unlawful assembly and riots
41 Ibid at 447-448 42 RSC 1985 c C-46
26
2 Trespass to Property Act
The Ontario Trespass to Property Act43 is a potential source of police power to arrest
without warrant those who are unlawfully on certain premises or who were recently
unlawfully on the premises and refuse to give their name and address44 This statute
deals with illegal entry into both private and public property by creating the offence of
trespass for those who without the express permission of the occupier enter on to
premises or engage in an activity on the premises when it is prohibited by the statute45
Though this statute is primarily used by private property owners to keep unwanted people
off of their property it has also been invoked by the Speaker of the House46 and by the
City of Toronto47 It must be noted however that using the Trespass to Property Act in
relation to removing individuals from ldquopublicrdquo places may raise Charter issues48
3 Foreign Missions and International Organizations Act
The RCMP as peace officers have the general duty to preserve the peace and prevent
crime and offences as set out in s 18 of the Royal Canadian Mounted Police Act49
Additional duties found in s 17 of the Royal Canadian Mounted Police Regulations
198850 include the protection of ldquointernationally protected personsrdquo as defined in s 2 of
the Criminal Code Internationally protected persons include heads of state and their
43 RSO 1990 c T2144 Ibid ss 9(1) 1045 Ibid s 2(1)46R v Behrens [2004] OJ No 5135 (CJ) The Court held that the issue of the trespass notices fell under the Speakerrsquos parliamentary privilege and were not reviewable even on the basis of a Charter argument47R v Semple [2004] OJ No 2137 (CJ)48 In R v Semple the defendants were charged under the Ontario Trespass to Property Act for entering the grounds of Toronto City Hall after being banned from doing so In the end the Court held that the defendantsrsquo peaceful entry onto the grounds was an expression as per s 2(b) of the Charter Torontorsquos notice under the Act infringed on this freedom and in these circumstances it could not be justified under s 1 of the Charter 49 RSC 1985 c R-1050 SOR88-361
27
family members The RCMPrsquos duty to protect internationally protected persons is also
found in s 6(1) of the Security Offences Act51
In addition Canada is a signatory of the United Nations Convention on the Prevention
and Punishment of Crimes against Internationally Protected Persons including
Diplomatic Agents52 This Convention provides that the Government of Canada must
protect visiting heads of state or government foreign ministers representatives or
officials of a state or any official or other agent of an international organization of an
intergovernmental character and the family members that accompany him or her The
RCMP has the responsibility to carry out these security measures
Pursuant to s 101(1) of the FMIOA ldquoThe Royal Canadian Mounted Police has the
primary responsibility to ensure the security for the proper functioning of any
intergovernmental conference in which two or more states participate that is attended by
persons granted privileges and immunities under this Act and to which an order made or
continued under this Act appliesrdquo
The powers to carry out this mandate are found in s 101(2) of the FMIOA ldquothe Royal
Canadian Mounted Police may take appropriate measures including controlling limiting
or prohibiting access to any area to the extent and in a manner that is reasonable in the
circumstancesrdquo It is noteworthy that the FMIOA has legislated the same powers
provided to the police under common law and statute
In order to trigger the RCMP powers described in s 101 the Governor in Council on the
51 RSC 1985 c S-752 UNGA Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons including Diplomatic Agents 20 February 1977 UN Doc I-15410
28
recommendation of the Minister of Foreign Affairs and pursuant to s 5 of the FMIOA
made the G8 Summit Privileges and Immunities Order 201053 on December 10 2009
This order was repealed and a subsequent order54 was made on January 13 2010 A
similar order55 for the G20 Summit was made on March 11 201056
Therefore during the G20 the RCMP had the specific statutory power to limit or
prohibit access to any area and to any extent as long as the measures were appropriate
and done in a manner that was reasonable in the circumstances ldquoThe RCMP may secure
the perimeter of the security zone on land with fencing and restrict access to this zone
through the use of checkpoints and other measuresrdquo57
Though not invoked during the G20 s 101(4) of the FMIOA provides that arrangements
can be entered into with a province concerning the responsibilities of members of the
RCMP and members of the provincial and municipal police forces with respect to
ensuring the security for the proper functioning of an intergovernmental conference No
information was provided to me as to why such an arrangement was not entered into for
the G20
These intergovernmental security provisions of the FMIOA were enacted just prior to the
G8 being held in Kananaskis Alberta in 2002 In light of violent protests at international
events and the 911 terrorist attacks in the United States the Federal Government
53 SOR2009-33654 SOR2010-1355 SOR2010-6256 Supra note 17 ldquoUpon such an Order being made the RCMP in co-operation and collaboration with other police forces becomes impressed with the primary responsibility of ensuring not only the protection of the IPPs but also ensuring lsquosecurity for the proper functioningrsquo of the intergovernmental conference To that end the FMIOA provides that the lsquoappropriate measures including controlling limiting or prohibiting access to any area to the extent and in a manner that is reasonable in the circumstancesrsquo may be takenrdquo57 Ibid
29
considered it timely ldquoto clarify in statute the present common law authority for police to
provide security and protection for high profile international eventsrdquo58 At such events it
was intended that ldquothe RCMP is the lead to make sure that security is providedrdquo59
Given that it was clearly the intention of the Federal Government to have the RCMP as
the lead police force at these international events consideration should be given to
expand the use of the FMIOA to cover all large scale international events such as the
Olympics the Pan American Games and international trade fairs as these events are
routinely attended by heads of state and senior government officials Most recently
Vancouver held the 2010 Olympic and Paralympic Winter Games60 Though federal and
municipal legislation were passed to assist in securing the Games expansion and
application of the FMIOA would have been a better approach The RCMP as the national
police force ought to be in charge pursuant to their authority under the FMIOA
4 Emergency Legislation
Through my consultations with the parties listed in Appendix 2 I heard that while we are
not in a time of war as in 1939 when the PWPA was enacted we live in an age of
international and local terrorism threats Our democratic society must be vigilant in
58 Canada House of Commons Debates 37th Parl 1st Sess No 93 (5 October 2001) at 100059 Canada House of Commons Standing Committee on Public Safety and National Security 40th Parl 3rd
Sess Evidence (25 October 2010)60 In anticipation of this event the Governor General in Council on the recommendation of the Minister of Transport pursuant to the Aeronautics Act (RSC 1985 c A-2) and the Canadian Air Transport Security Authority Act (SC 2002 c 9 s 2) passed the Vancouver 2010 Aviation Security Regulations (SOR2009-298) The purpose of the regulations was to enhance aviation security during the Games The Regulation provided for extra security and extra authorized means to conduct screenings In addition the Vancouver City Council passed the very lengthy By-law No 9962 known as the ldquoVancouver 2010 Olympic and Paralympic Winter Games By-Lawrdquo Specific security measures to be employed at a city live site (described thoroughly in a Schedule to the By-Law) that were enabled by this By-Law included The installation and monitoring of airport style and other security measures including magnetometers and X-ray machines the installation and monitoring of closed circuit television cameras the searching of any person who wished to enter on to a city live site and any bag luggage or other container carried by such person and the prohibiting of access to or removal from a city live site any person who refused to submit to a search
30
maintaining a proper level of security while recognizing that democratic values and
security issues can conflict where public order is at issue It is important to highlight that
provincial legislation exists dealing with both terrorism threats and emergency situations
I have been informed that federal and provincial counter-terrorism plans exist that
address preventing and responding to acts of terrorism
The Police Services Act regulations mandate police forces to establish procedures
consistent with federal and provincial counter-terrorism plans61 and to have policies with
respect to counter-terrorism62 In addition the Emergency Management and Civil
Protection Act allows for orders to be made in situations specifically designated an
ldquoemergencyrdquo63 by the Lieutenant Governor in Council or the Premier that regulate or
prohibit travel and movement to from or within any specified area64 Therefore the
PWPA is not needed to deal with these emergency situations as specific more recent
emergency legislation is in place for that very purpose
C Gaps in Canadian Police Powers
The Ministry of Community Safety and Correctional Services provided me with an
interesting article published in 2010 entitled ldquoThe Gap in Canadian Police Powers
61 Adequacy and Effectiveness of Police Services O Reg 399 s 2862 Ibid s 2963 Section 1 of the Emergency Management and Civil Protection Act defines an ldquoemergencyrdquo as ldquoemergencyrdquo means a situation or an impending situation that constitutes a danger of major proportions that could result in serious harm to persons or substantial damage to property and that is caused by the forces of nature a disease or other health risk an accident or an act whether intentional or otherwise (ldquosituation drsquourgencerdquo)64 RSO 1990 c E9 s 702(4)
31
Canada needs lsquoPublic Order Policingrsquo Legislationrdquo and co-authored by Wesley Pue and
Robert Diab65
This article was prompted by the debate over the cost nature and extent of security to be
employed at the Vancouver 2010 Winter Olympics The authors criticized the fact that
policing authorities in Canada ldquolack specific statutory authorization to take measures
commonly thought necessary to their missionrdquo66 These measures included security
fences in public areas designated protest areas restricted access to public space police
surveillance and searches without cause
The authors recognize that such powers may be necessary but note that ldquono legislature
has ever expressly conferred such powers on policing authorities outside the context of
international intergovernmental conferences Nor does the common law accord such
powers to state officials on its ownrdquo67 I respectfully disagree with this latter statement
It is my view the police have powers pursuant to the common law and statute as I have
discussed in the preceding section
The authors referred to R v Knowlton68 which I have previously discussed While the
authors give Knowlton a very narrow interpretation stating that ldquoits binding principle is a
good deal narrower than the words taken out of context might suggestrdquo69 I however am
of the view that the decision supports the proposition that police have a broad range of
65 Wesley Pue and Robert Diab ldquoThe Gap In Canadian Police Powers Canada Needs lsquoPublic Order Policingrsquo Legislationrdquo (2010) 28 Windsor Rev Legal Soc Issues 87 Wesley Pue is a professor of legal history at the University of British Columbia and Robert Diab is a PhD candidate at the UBC Faculty of Law66 Ibid p 8867 Ibid68 Supra note 3469 Supra note 65 p 92
32
responsibilities with deep historical roots in the common law and codified in statute a
position shared by the Federal Government when it introduced amendments to the
FMIOA The actions of the police in Knowlton were necessarily incidental to their
common law police duties and powers
The authors conclude that this ldquoauthority of police to create zones of exclusion either as
an incident of the general and ancient duties of constableshelliphas never been established in
the courtsrdquo70 I am of the view however that the role of the police in establishing
security zones relating to a crime a serious accident or other emergency is a routine and
well-accepted use of police powers pursuant to their common law and statutory duties I
am not suggesting that this common law authority permits the police to establish security
zones ldquofor the proper functioning of any intergovernmental conference in which two or
more states participaterdquo71 larger than necessary to fulfill their purpose The FMIOA as
amended in 2002 provides the RCMP with ldquoprimary responsibility to ensure the security
for the proper functioning of the intergovernmental conferencerdquo72 It is interesting
however that when the Federal Government was enacting this specific authority the
legislative debates indicated that the government was merely clarifying ldquoin statute the
present common law authority for police to provide security and protection for high
profile international eventsrdquo73
Security perimeters are routinely erected by police in the context of the commission of a
crime motor vehicle and other accidents as well as the Santa Claus parade and other
70 Ibid p 9671 Supra note 8 s 101(1)72 Ibid73 Supra note 58
33
parades It would in my view be quite impractical and unnecessary to legislate an
extensive code of police powers given their common law and statutory responsibilities to
generally maintain public order It is not advisable in my opinion to be prescriptive in
any way regarding what actions the police can take since they must assess what the
situation warrants while at the same time considering individual rights and freedoms
The details of any police response to an emergency must be tailored to the exigencies
related to the situation
The police clearly have common law and statutory authority to conduct warrantless
searches in specific situations (ldquoin exigent circumstancesrdquo)74 However when
warrantless searches must be carried out on a regular routine basis the police are acting
more like full time security guards and there should be specific statutory authority
provided to give such powers
I certainly accept the general proposition the authors assert that the mobility rights of
citizens should not be unreasonably or unfairly dealt with However one only need be
aware of the massive amount of construction taking place on the streets of Toronto as this
Report is being written to appreciate that it is not always reasonable to expect that ldquothe
rights of businesses homeowners and ordinary citizens to go about their routine
activities without interruptionrdquo75 will go unhindered While generally desirable it cannot
be legally guaranteed At the same time the authors do concede that ldquoimportant as they
74 Supra note 42 s 4871175 Supra note 65 p 89
34
are the rights of assembly movement and protest are not unqualified They can ndash and
should ndash be balanced against other important public needsrdquo76
In my view public policing at times requires innovation as it often benefits from
creative problem solving If police abuse their common law powers related to ldquopublic
order policingrdquo they are accountable to a multiplicity of authorities and the rule of law
most particularly the Charter The legal rights outlined in the Charter such as ldquothe
principles of fundamental justicerdquo77 security ldquoagainst unreasonable search and seizurerdquo78
and ldquothe right not to be arbitrarily detained or imprisonedrdquo79 are described very
generally However they were chosen deliberately as it was recognized that in each case
there is an inherent tension between imposing security measures and fundamental rights
and freedoms Determining which is paramount will be based on the facts of each case
76 Ibid p 9177 Canadian Charter of Rights and Freedoms s 7 Part I of the Constitution Act 1982 being Schedule B to the Canada Act 1982 (UK) 1982 c 1178 Ibid s 879 Ibid s 9
35
SECTION 5 LEGAL ANALYSIS OF THE PUBLIC WORKS PROTECTION ACT
A Legal Analysis of the Legislation
Many stakeholders have questioned the constitutional validity of the PWPA and O Reg
23310 The Ontario Ombudsman seriously questioned whether O Reg 23310 could
pass ldquoconstitutional musterrdquo80 The CCLA suggested that the broad police powers
granted under the PWPA were inconsistent with the Charter81
To the same effect were comments made by Premier Dalton McGuinty who described
the PWPA as ldquoan archaic law that was used to undermine Torontoniansrsquo civil rights
during the G20rdquo82 He elaborated83
The issue is whether itrsquos appropriate given our present-day values and given an old law which I am confident doesnrsquot strike the balance that you and I would want today in terms of public safety and individual freedom of expressionhellipWhen you start talking about civil rights individual freedoms yoursquore talking about those things that in fact define us as a free and democratic societyhellipItrsquos something that is real and meaningful and important to all of us
The Terms of Reference for this Review do not require that I conduct a constitutional
analysis of the PWPA I have however been asked to consider areas for reform and if
appropriate make specific recommendations for amendment or repeal This does require
that I therefore consider whether the legislation may be vulnerable to constitutional
challenge
Section 2(b) of the Charter guarantees everyone the fundamental freedom of expression
The definition of ldquoexpressionrdquo has been interpreted broadly ldquoActivity is expressive if it
80 Supra note 32 at para 23381 Supra note 26 p 982 Robert Benzie and Rob Ferguson ldquoMcGuinty shifts focus to fixing G20 lawrdquo Toronto Star (10 December 2010) online thestarcom lthttpwwwthestarcomnewscanadaarticle905436--mcguinty-shifts-focus-to-fixing-g20-lawgt 83 Ibid
36
attempts to convey meaningrdquo84 While freedom of expression is not absolute there is
very little that is not considered expression However expression that advocates violence
is not protected under s 2(b)85
The Supreme Court of Canada in Committee for the Commonwealth of Canada v
Canada held that s 2(b) ldquodoes not encompass the right to use any and all government
property for purposes of disseminating onersquos views on public matters but I have no doubt
that it does include the right to use for that purpose streets and parks which are dedicated
to the use of the public subject no doubt to reasonable regulation to ensure their
continued use for the purposes to which they are dedicatedrdquo86 It seems clear that
protesting in public streets is a form of expression protected by s 2(b) Protesting at an
intergovernmental conference is clearly expressive in nature
In challenges alleging that a statute contravenes s 2(b) of the Charter a court would
examine whether the purpose or effect of a law contravenes section 2(b)87 There is no
reason to suggest that the purpose of the PWPA was to infringe the freedom of
expression The purpose of the PWPA is to protect important public infrastructures A
court would then have to consider whether the effect of the PWPA may have resulted in
an infringement of freedom of expression
O Reg 23310 defined significant portions of downtown Toronto as a ldquopublic workrdquo
Section 3(c) of the PWPA allows peace officers to refuse entry into public works which
therefore limits the areas in which protesters could express themselves By creating the
84 Irwin Toy Ltd v Queacutebec (Attorney General) [1989] 1 SCR 927 at 96885 Ibid at 97086 [1991] 1 SCR 139 at 165-16687 Peter Hogg Constitutional Law of Canada loose-leaf (consulted on 7 January 2011) 5th ed (Toronto Thomson Reuters Canada Limited 2007) at 43-6
37
relatively large security perimeter designated by the regulation individuals may allege
they were not permitted to communicate directly with those they were protesting against
Furthermore individuals could not communicate in public places such as public streets
where the right to freedom of expression has previously been found to exist88
Commissioner Ted Hughes completed an interim report following a public hearing into
the complaints regarding events that took place with respect to the Asia Pacific Economic
Cooperation (APEC) Conference in Vancouver British Columbia in November 1997
Commissioner Hughes recommended that generous opportunity should be afforded to
peaceful protesters to be seen in their protest activities by guests at the event89
Section 7 of the Charter provides that ldquoEveryone has the right to life liberty and security
of the person and the right not to be deprived thereof except in accordance with the
principles of fundamental justicerdquo The PWPA raises issues regarding the liberty and
security of the person in providing for warrantless searches and stopping for
identification Furthermore vague laws offend two fundamental values of our legal
system90 Firstly individuals are not provided with sufficient guidance as to what
behaviour a law prohibits Secondly those in charge of enforcing the law are not
provided with clear guidance as to how to enforce it A vague law can lead to inconsistent
and arbitrary enforcement91
88 Supra note 86 89 Canada Commission for Public Complaints Against the RCMP APEC ndash Commission Interim Report (31 July 2001) at s 3111 (Commissioner Ted Hughes QC) online Commission for Public Complaints Against the RCMP lthttpwwwcpc-cppgccaprrrepphrapecapec-31-engaspxgt90 Supra note 87 at 47-60 91 ldquoA vague provision does not provide an adequate basis for legal debate that is for reaching a conclusion as to its meaning by reasoned analysis applying legal criteria It does not sufficiently delineate any area of risk and thus can provide neither fair notice to the citizen nor a limitation of enforcement discretion Such
38
As described by Professor Hogg92
The requirement that any limit on rights be prescribed by law reflects two values that are basic to constitutionalism or the rule of law First in order to preclude arbitrary and discriminatory action by government officials all official action in derogation of rights must be authorized by law Secondly citizens must have reasonable opportunity to know what is prohibited so that they can act accordingly Both these values are satisfied by a law that fulfils two requirements (1) the law must be adequately accessible to the public and (2) the law must be formulated with sufficient precision to enable people to regulate their conduct by it and to provide guidance to those who apply the law
As I stated earlier the phrase ldquoany approach theretordquo contained in s 3(a) of the PWPA is
potentially vague No criteria are provided to assist in determining when one is on ldquoany
approach theretordquo A phrase such as ldquoany approach theretordquo is subject to many potential
interpretations It is arguable that this language does not provide reasonable guidance for
individuals to obey the law and for the law to be consistently enforced
Section 8 of the Charter provides that ldquoEveryone has the right to be secure against
unreasonable search or seizurerdquo A warrantless search or seizure is only reasonable if the
search was authorized by law the law itself is reasonable and the manner in which the
search carried out was reasonable93 The fact that no reasonable or probable suspicions
are needed to carry out a search pursuant to s 3(b) of the PWPA raises some issues The
only prerequisite to such a search is that the person or vehicle being subjected to a search
is entering or attempting to enter a public work
a provision is not intelligible to use the terminology of previous decisions of this Court and therefore it fails to give sufficient indications that could fuel a legal debaterdquo (R v Nova Scotia Pharmaceutical Society [1992] 2 SCR 606 at 639-640) 92 Supra note 87 at 38-1293 R v Nolet [2010] SCJ No 24 at para 21
39
Whether the PWPArsquos s 3(b) authority to undertake warrantless searches is ldquoreasonablerdquo
depends on the reasonableness of the impact on the subject of the search ldquoThe
individuals reasonable expectation of privacy must of course be balanced against the
public interest in effective law enforcementrdquo94 It is harder to justify a warrantless search
where the reasonable expectation of privacy is higher For example interference with
bodily integrity will raise the standard of reasonableness Conversely in situations where
people expect to have a lower level of privacy the standard to prove reasonableness is
lower
One rightfully has some expectation of privacy when in public but it does not rise to the
level of privacy that one expects in onersquos home The expectation of privacy further
decreases when one attempts to enter a ldquopublic workrdquo especially in the context of a
secured barrier to an intergovernmental conference
Section 9 of the Charter provides that ldquoEveryone has the right not to be arbitrarily
detained or imprisonedrdquo95 Under s 3(a) of the PWPA a person entering or attempting to
enter or approach a public work must provide his or her name and address and state the
purpose for which he or she desires to enter the public work In order for a guard or
peace officer to carry out this duty the guard or peace officer may ldquostoprdquo the person from
further approaching or entering the public work and the person is not permitted under the
statute to decide not to enter By so doing it is arguable the guard or peace officer has
assumed control over the movement of the individual by a demand or direction The
94 R v Rao [1984] OJ No 3180 at para 79 (CA)95 ldquoDetention under s 9hellipof the Charter refers to a suspension of the individualrsquos liberty interest by a significant physical or psychological restraint Psychological detention is established either where the individual has a legal obligation to comply with the restrictive request or demand or a reasonable person would conclude by reason of the state conduct that he or she had no choice but to complyrdquo (R v Grant [2009] SCJ No 32 at para 44)
40
PWPA provides for a significant legal consequence if the demand or direction is not
followed since ldquoEvery person who neglects or refuses to comply with a request or
direction made under this Act by a guard or peace officer and every person found upon a
public work or any approach thereto without lawful authority the proof whereof lies on
him or her is guilty of an offence and on conviction is liable to a fine of not more than
$500 or to imprisonment for a term of not more than two months or to bothrdquo96
Pursuant to s 3(b) of the PWPA a guard or peace officer may search any person entering
or attempting to enter a public work These searches would necessitate the detention of a
person If a guard or peace officer performs such a search he or she has taken control
over the movement of the person by a demand or direction The same serious legal
consequence results from failing to obey this demand or direction as that which results
from failing to obey the demand or direction pursuant to s 3(a) of the PWPA As a
result ldquodetentionsrdquo could occur pursuant to both s 3(a) and s 3(b) of the PWPA
The question that would need to be addressed in any challenge to the PWPA is whether
the detentions permitted by the PWPA are arbitrary in nature The use of the term ldquoany
approach theretordquo is vague and imprecise A person could be deemed to be on ldquoany
approach theretordquo a great distance from the entrance of a public work and their detention
might very well be arbitrary In addition the fact that the guards and peace officers
determine the boundaries of the ldquoapproachesrdquo which cannot be contested seems
arbitrary as well as who they chose to search
96 It should be noted that not all communications with state authorities and police officers will amount to a detention The question is whether a person may reasonably believe that he or she is free to refuse to comply
41
Section 11(d) of the Charter provides that ldquoAny person charged with an offence has the
right to be presumed innocent until proven guilty according to law in a fair and public
hearing by an independent and impartial tribunalrdquo This requires that the Crown have the
burden of proving the guilt of an individual charged with an offence97 Provisions that
place the burden on the accused to disprove on the balance of probabilities an essential
element of an offence raises s 11(d) concerns because convictions would be possible
even if reasonable doubt existed98 The presumption of innocence is not only infringed
upon by a requirement that an accused disprove an essential element of an offence but
also any requirement on an accused to prove a fact on the balance of probabilities to
avoid conviction
Section 5(1) of the PWPA states that ldquoEvery person who neglects or refuses to comply
with a request or direction made under this Act by a guard or peace officer and every
person found upon a public work or any approach thereto without lawful authority the
proof whereof lies on him or her is guilty of an offence and on conviction is liable to a
fine of not more than $500 or to imprisonment for a term of not more than two months or
to bothrdquo For the offence of being found upon a public work or on any approach to a
public work without lawful authority the burden of proof has been ldquoshiftedrdquo from the
Crown to the accused to prove lawful authority
As the foregoing analysis reveals there are certainly many concerns that arise when one
places the PWPA under the lens of the Charter However the rights and freedoms
provided by the Charter are not absolute They are ldquosubject only to such reasonable
97 R v Oakes [1986] 1 SCR 10398 Ibid at 132
42
limits prescribed by law as can be demonstrably justified in a free and democratic
societyrdquo99
In assessing whether a law which infringes the Charter is saved by s 1 a court examines
both the object of the law and the measures taken to achieve that objective A lawrsquos
objective achieves the status of being sufficiently important to justify overriding a
Charter right only when it is consistent with the values of a free and democratic society
The objective must relate to pressing and substantial concerns and not concerns that are
trivial and must be focussed on ldquothe realization of collective goals of fundamental
importancerdquo100 The measures adopted must be ldquorationally connectedrdquo to the objective of
the law101 The measures ldquoshould impair lsquoas little as possiblersquo the right or freedom in
questionrdquo102 Furthermore there must be ldquoa proportionality between the effects of the
measures which are responsible for limiting the Charter right or freedom and the
objective which has been identified as of lsquosufficient importancersquordquo103
An issue that may affect whether the potential limitation on rights and freedoms of the
PWPA and O Reg 23310 were ldquoprescribed by lawrdquo is whether the regulation was
adequately accessible to the public The Ontario Ombudsman the CCLA and the Ontario
Bar Association (ldquoOBArdquo) all noted a lack of notice regarding O Reg 23310 and its
effects prior to and during the G20 While the text of the regulation was available prior
99 Charter s 1 The Superior Court of Quebec decision of Tremblay v Queacutebec (Attorney General) [2001] JQ No 1504 (CS) involved an interim injunction brought by an applicant who was denied entry into the secured perimeter during the 2001 Summit of the Americas in Queacutebec City The applicant sought an injunction to either eliminate the security barrier or to be given a pass to let him within the secured perimeter Even though the Court held that the erection of the security zone violated the applicantrsquos right to freedom of expression and peaceful assembly The court held that the infringement was ldquodemonstrably justified in a free and democratic societyrdquo100 Supra note 97 at 136101 Ibid at 139102 Ibid103 Ibid
43
to the G20 it was only available on a website not frequently accessed by the public
Since O Reg 23310 was not published in The Ontario Gazette until after it was
revoked it may be that the regulation was not adequately accessible to the public
Reverse onus offences have been found to be ldquorationally connectedrdquo when there is plainly
a rational connection between the proven fact and the fact to be presumed Reverse
onuses have also been upheld when the burden placed on the Crown would be virtually
impossible to meet (such as proving sanity)104 Even if the accused only has the burden
of disproving the fact that heshe did not have lawful authority to be in a public work or
on an approach thereto there may not be a rational connection between the proven fact
and the fact to be presumed
The history of threats and violence at previous intergovernmental conferences
demonstrated that the protection of G20 participants was a pressing and substantial
concern However given the broadness of the PWPA every exercise of it raises the
potential for Charter scrutiny
Recommendation
Given the public policy considerations I have raised regarding the PWPA and Charter
concerns that could arise I recommend that the PWPA be repealed after the Province has
considered potential policy and security gaps as a result of its repeal
B Other uses of the Public Works Protection Act
It appears from my consultations with stakeholder groups that if the PWPA is repealed
104 R v Chaulk [1990] 3 SCR 1303 at 1340
44
there are two areas which may require legislation to provide specific peace officer
powers These two areas are court security and the protection of nuclear power facilities
and other power generating infrastructures
1 Court Security
During my decade as Ontariorsquos Attorney General (1975 to 1985) there were three
murders in provincial courthouses as well as many threats to members of courthouse staff
and others As violent acts in courthouses can be anticipated courtroom security is often
required
Individuals are compelled to go to court for a variety of reasons such as appearing as an
accused as a witness or for jury duty To provide protection to those who work there or
are compelled to attend an adequate level of court security may require a search without
warrant of each and every individual who seeks to enter a courthouse It is not reasonable
to require prior judicial authorization for each search that takes place
The courts have considered the constitutionality of these provisions of the PWPA in
conjunction with section 137 of the Ontario Police Services Act in the context of court
security
Section 137 of the Ontario Police Services Act imposes a responsibility on municipal
police services boards to secure the premises where court proceedings are conducted and
includes
1 Ensuring the security of judges and of persons taking part in or attending proceedings
45
2 During the hours when judges and members of the public are normally present ensuring the security of the premises
3 Ensuring the secure custody of persons in custody who are on or about the premises including persons taken into custody at proceedings
4 Determining appropriate levels of security for the purposes of paragraphs 1 2 and 3
In R v Campanella105 Ms Campanella was attending the John Sopinka Courthouse in
Hamilton At the courthouse there were signs posted stating that those who entered
would be searched for weapons When Ms Campanellarsquos bag was searched marijuana
was found and she was charged with the possession of marijuana She argued that her s
8 Charter protection against unreasonable search and seizure had been violated and the
marijuana discovered during the search should therefore be excluded as evidence The
trial judge and the summary convictions appeal court rejected the section 8 Charter
argument and the appellant appealed to the Ontario Court of Appeal
The Ontario Court of Appeal agreed that ldquogiven the importance of the government
objective and the context in which these searches take place it is reasonable to authorize
warrantless searches of those entering courthouse facilitiesrdquo106 The Court stated ldquothe
only effective way to diminish the risk in a large courthouse is to subject everyone
without prior security clearance to some kind of inspection I can see no other feasible
means of achieving the aimrdquo107
The Court also pointed out the concern relating to the erosion of the benefits and
105 [2002] OJ No 5104 (SCJ) affrsquod [2005] OJ No 1345 (CA) [ldquoCampanellardquo]106 R v Campanella [2005] OJ No 1345 at para 17 (CA)107 Ibid at para 19
46
protections conferred by s 8 of the Charter108
I am sensitive to the concern that we should not erode the benefits and protections of s 8 by gradually sanctioning ever-greater intrusions into privacy because of unfounded fears We should not lightly accept that searches in public places are justified solely because people have become used to them and expect them However the record in this case establishes the justification for the kinds of searches carried out in this case
Ultimately the appeal was dismissed and s 137 of the Police Services Act and s 3(b) of
the PWPA) were held to comply with s 8 of the Charter109
In its consultations with me the OBA similarly stated that the existing nature of court
security is necessary and is generally ldquowell toleratedrdquo At the same time however it
submits that the security regime should not be ldquoshoehornedrdquo into the PWPA regime and
that it would be preferable to provide a legislative framework tailored for the specific
security requirements While the PWPA has been relied upon as support for the exercise
of powers by the police in providing court security the OBA submits that the PWPArsquos
ldquosingle security schemerdquo which declares something a ldquopublic workrdquo is an ldquoawkward
blunt instrument in a world where more specialized tools are necessaryrdquo When
warrantless searches are being done on a routine basis it is advisable to have specific
legislation providing peace officers with such power
Recommendation
Court security legislation is currently in place in many jurisdictions across Canada and
contain provisions that permit warrantless searches of persons wanting to access a
108 Ibid at para 25109 The Court in R v SS [2005] OJ No 5002 (SCJ) agreed with the findings and rationale of the Court of Appeal in Campanella
47
courthouse The constitutional validity of such legislation in Manitoba was upheld by that
provincersquos highest court110
Given the ongoing need for warrantless searches at courthouses the Province of Ontario
should consider specific court security legislation in Ontario to support the security
measures in our courthouses if the PWPA is to be repealed taking into consideration the
responsibilities of the municipal police services boards provided in s 137 of the Police
Services Act This legislation should only be passed after proper notice consultation and
legislative debate
2 Power Generating Infrastructures
It is clear from the submissions that I received from representatives of OPG and the
Canadian Nuclear Safety Commission (ldquoCNSCrdquo) that the PWPA currently plays a role in
providing security officers with the powers to secure power generating infrastructures
including the ability to carry firearms and the ability to stop and require identification
from those in proximity to those nuclear plants
Security is of the utmost importance in protecting a nuclear power plant Members of the
public do not need to access a nuclear or similar power facility unless employed at the
facility or carrying out work for the facility111
The security of areas within nuclear power plants is governed by the Nuclear Security
110 R v Lindsay [2004] MJ No 380 (CA) 111 Though the discussion focuses on nuclear power plants I have been informed that other power generating infrastructures use the PWPA to designate their security officers as guards As a result if the PWPA is repealed it will be necessary to broaden the consultations in relation to these other power generating infrastructures
48
Regulations112 Every nuclear power plant must be located within a ldquoprotected areardquo113
This protected area is the area within a fenced perimeter which is alarmed and
continually patrolled This area must be equipped with devices that employ two
independent systems to detect intrusion into the area114 The Nuclear Security
Regulations also provide detailed specifications for the barrier which must enclose the
protected area115 In addition licensees must ldquoidentify all vital areas and implement
physical protection measures ndash including access control and measures designed to delay
unauthorized accessrdquo116
The Nuclear Security Regulations also provide detailed provisions regarding entry into
protected areas No person can ldquoenter a protected area without physical proof of the
recorded authorization of the licenseerdquo117 Further to this on entry into a protected area
ldquothat personrsquos identity shall be verified by two separate personnel identity verification
systems one of which is an access card reader and the other of which is a biometric
personnel identity verification devicerdquo118 Licensees must also ldquoensure that vehicle
portals are used for the entry and exit of land vehicles into and from a protected areardquo119
Physical protection measures are also required to reduce the chance of a forced land
vehicle entry into a protected area120
The power to conduct searches upon entry to a protected area is also provided by the
112 SOR2000-209 113 Ibid s 8114 Ibid s 11(a)(i)115 Ibid s 9116 Ibid s 141117 Ibid s 17(1)118 Ibid s 171119 Ibid s 91(1)120 Ibid s 91(4)
49
Nuclear Security Regulations Signs must be posted that are visible to people about to
enter the protected area stating that they must allow a nuclear security officer (ldquoNSOrdquo) to
ldquosearch them and everything in their possession including any land vehicle for weapons
and explosive substancesrdquo121 In addition when leaving the protected area people must
allow NSOs to ldquosearch them and everything in their possession including any land
vehicle for Category I II or III nuclear materialrdquo122 People are not permitted to enter or
leave a protected area unless these searches are carried out123 The Nuclear Security
Regulations provide for the method of search including ldquoa hand-held scanner a walk-
through scanner or any similar devicerdquo124 In addition if an NSO determines it
necessary a frisk search can be carried out by a person of the same sex125
I have been informed that the area outside of but adjacent to the ldquoprotected areardquo is
referred to as the ldquocontrolled areardquo This area includes roadways and waterways within
the nuclear facilityrsquos property boundaries adjacent to or in close proximity to the nuclear
power plantrsquos protected area and may be generally accessible to the public
As a result of the September 11 2001 terrorist attacks the Nuclear Security Regulations
were amended to require that high security nuclear facilities maintain an on-site armed
Nuclear Response Force (ldquoNRFrdquo)126 The NRF is composed of specialized NSOs
Section 32 of the Nuclear Security Regulations requires the NRF to be capable of making
an effective intervention taking into account the threat
121 Ibid s 27(1)(a)122 Ibid s 27(1)(b)123 Ibid s 27(2)124 Ibid s 27(5)(a)125 Ibid s 27(5)(b)126 Ibid s 32
50
Members of the NRF are mandated by the Nuclear Security Regulations to be ldquotrained in
the use of firearms authorized to carry firearms in Canada and qualified to use themrdquo127
However to satisfy this requirement the NRF resorts to the PWPA since the federal
regulations do not authorize the NRF to carry firearms without a licence However
under s 2(1) of the PWPA NSOs are designated as ldquoguardsrdquo with the powers of a peace
officer most significantly to carry and use firearms without having to be licensed128
Such a designation also enables the OPG to acquire and dispose of firearms
In the consultations I had with the OPG and the CNSC they advised me that NSOs
receive training equivalent to Canadian police standards and that NRF officers receive
training equivalent to federal and provincial police tactical team requirements
Another aspect of the PWPA used to secure nuclear power plants relates to powers
exercised by NSOs in ldquocontrolled areasrdquo The federal regulations do not provide the
NSOs with any power to demand identification within this area However pursuant to
the PWPA as appointed ldquoguardsrdquo the NSOs have the power to demand identity
verification in the controlled area They also have the authority to arrest anyone who
obstructs NSOs in the performance of their duties under the PWPA
In addition to using the PWPA to secure the controlled areas I have been advised by the
OPG that NSOs use powers pursuant to the PWPA to secure areas within 100 metres of a
nuclear facilityrsquos property line immediately adjacent to the controlled area These powers
are exercised under the broad language of the PWPA regarding ldquoapproaches to public
127 Ibid s 1 (on-site nuclear response force definition)128 Section 11707 of the Criminal Code exempts peace officers from licensing requirements for possessing firearms and other prohibited and restricted weapons
51
worksrdquo This is an illustration of the problem with the vagueness of this language in the
legislation As these powers are exercised on public land they could be challenged as a
potential infringement on individual rights and freedoms However I have been advised
that there have been no such incidents to date The need to ensure the security of these
facilities must be taken into the balance
NSOs must be able to monitor and control access to the controlled areas and areas close
to a nuclear power plantrsquos property line This provides for a more secure perimeter
around these facilities They need authority to challenge individuals acting in a suspicious
manner or conducting surveillance of nuclear facilities The OPG has informed me that
areas outside a nuclear facilityrsquos property line immediately adjacent to the controlled
area are still close enough to take advantage of the short distance to conduct intelligence
using high-powered surveillance equipment These nuclear power plants are not located
on isolated islands and are therefore vulnerable Both the Pickering Nuclear Generating
Station and the Darlington Nuclear Generating Station operate within major urban areas
being 30 km and 60 km east of downtown Toronto respectively I am advised that
previous events such as ldquoThe Toronto 18rdquo129 have shown that those intent on targeting
vital infrastructure such as power generating facilities often use reconnaissance and
intelligence gathering as precursor tactics
Recommendation
If the PWPA is to be repealed it is imperative that those who secure our nuclear and
power generating facilities be given the requisite specific legislative powers to do so
129 See for example ldquoLast 2 Toronto 18 accused found guiltyrdquo CBC News (23 June 2010) online cbcca lthttpwwwcbccanewscanadatorontostory20100623toronto-18-verdicthtmlgt
52
The source for these powers should be set out in the federal Nuclear Security
Regulations However if this is not a desired option the Government of Ontario must
consider specific legislation setting out the specific powers required to properly secure
these facilities and the specific location in which these powers can be exercised Such
legislation should not be passed without proper notice consultation and legislative
debate
53
SECTION 6 CONCLUSION
The PWPA was enacted in 1939 to support the war effort At the time the protection of
Ontariorsquos hydroelectric facilities from sabotage was of particular concern Since then the
PWPA has been used to provide the legal foundation for the powers exercised by the
police in providing court security and even more recently by the OPG in securing
nuclear power facilities In June 2010 the PWPA was used to provide powers to secure
intergovernmental conferences The vagueness of the PWPA permits it to be used in
situations when it is arguably not necessary and potentially abusive In my view the
PWPA has been used for purposes beyond its original intent
The time for the PWPA seems to have passed If the Government of Ontario enacts as I
have suggested specific legislation to provide for courthouse security and power
generating infrastructure security it would appear that there is no longer a need for the
PWPA I am also mindful of the existence of counter-terrorism and emergencies
legislation to deal with these situations as they arise
ldquoIn determining the boundaries of police powers caution is required to ensure the proper
balance between preventing excessive intrusions on an individualrsquos liberty and privacy
and enabling the police to do what is reasonably necessary to perform their duties in
protecting the publicrdquo130 The overly broad and vague language of the PWPA does not
strike this required balance with individual rights and freedoms
The late Justice Jackson of the United States Supreme Court stated that every
emergency power once conferred ldquolies about like a loaded weapon ready for the hand of
130 R v Clayton [2007] 2 SCR 725 at 742
54
any authority that can bring forward a plausible claim of an urgent needrdquo131 The need to
protect the public must be balanced with the requirement to preserve fundamental rights
and freedoms
Yet at the same time ldquoCanadians are entitled to demand the best public order policing
possible from their governmentrdquo132 There is no question that we live in a different world
post 911 We live in difficult times with constant threats both domestically and from
abroad The police clearly need to be given adequate powers to carry out their duties
The police use their expertise on a daily basis to assess the powers they require In
instances when they take action that exceeds their powers their actions are examined by
various mandated bodies This process I believe results in the proper balance between
police powers and individual rights and freedoms Therefore any legislation that purports
to grant special police powers must be specific and direct and developed in consultation
with stakeholders and tested through thorough debate in our transparent democratic
system
131 Korematsu v United States 323 US 214 (1944)132 Supra note 26 p 8
55
such as the Legislative Assembly courthouses and city halls and likely includes
provincially or municipally owned buildings used for governmental purposes It would
also seem to include provincially or municipally owned buildings used for other
purposes such as libraries for example
The third class of ldquopublic worksrdquo includes any other building place or work designated
as a public work by the Lieutenant Governor in Council The word ldquoplacerdquo would appear
to be a very broad term that could include a public park for example The area
designated by O Reg 23310 fell into this class of ldquopublic workrdquo
(b) Appointment and Powers of Guards and Peace Officers
Section 2 of the PWPA provides for the appointment of ldquoguardsrdquo the powers and duties
of peace officers and guards and the penalties for any breach of duty by these peace
officers and guards The PWPA provides that anyone who is a head of a board
commission or other body having charge over a public work can appoint a guard This is
very broad and arguably allows for the appointment of a private army by someone
ldquohaving charge ofrdquo a public work whoever that may be Pursuant to s 2(2) the ldquoguardsrdquo
have the same powers as a ldquopeace officerrdquo
Section 3 sets out the powers a guard or peace officer acquire pursuant to the PWPA
including that a guard may require people entering or approaching a public work to
identify themselves and to state the purpose for which they desire to enter the public
work In addition the guard or peace officer may search without warrant any person or
vehicle entering or attempting to enter a public work The guard or peace officer can
8
refuse to permit a person to enter a public work and can use as much force as necessary in
this endeavour
(c) Boundaries of Public Work
Section 4 provides that a statement under oath by an officer or employee of the person or
entity operating or having control of a public work regarding the boundaries of the public
work serves as conclusive evidence with respect to the boundaries
(d) Offence Power of Arrest
Section 5 provides that any person who neglects or refuses to comply with a request or
direction made by a guard or peace officer is guilty of an offence In addition a person
who enters a public work or an approach to a public work without lawful authority is
guilty of an offence A person found guilty of an offence is liable to a fine of not more
than $500 andor imprisonment of not more than two months A guard or peace officer
has the power to arrest without warrant any person who refuses to comply with a request
or direction of a guard or peace officer and who enters or attempts to enter a public work
without lawful authority
(e) Regulations
Section 6(b) provides that the Lieutenant Governor in Council may define the areas that
constitute approaches to public works while s 6(c) permits regulations to be made
regarding any matter necessary to carry out the intent and purpose of the PWPA
D Events Leading to Passage of O Reg 23310
There was no apparent reference to the possible use of the PWPA until fairly late in the
planning process for the security for the G20 Summit The Province of Ontario originally
9
attempted to obtain support for its security measures through reliance on a federal statute
the Foreign Missions and International Organizations Act (ldquoFMIOArdquo) which provides
that the RCMP can take ldquoappropriate measuresrdquo to ensure the proper functioning of an
intergovernmental conference ldquoin a manner that is reasonable in the circumstancesrdquo8
On May 7 2010 John Burke Deputy Minister of Community Safety and Correctional
Services of Ontario wrote to William Baker Deputy Minister of Public Safety Canada9
stating that security would be enhanced by the existence of an agreement pursuant to s
101(4) of the FMIOA which provides that the Federal Minister of Public Safety may
enter into arrangements with the government of a province concerning the responsibilities
of members of the RCMP and provincial municipal police forces with respect to
ensuring security for the proper functioning of a conference
On June 11 2010 the Provincial Deputy Minister received a reply10 from the Federal
Deputy Minister indicating that such an agreement would not be required for the
Summits since ldquothe current suite of powers and authorities that peace officers possess at
common law or by virtue of any other federal or provincial Act or regulation were
sufficient for the G8 and G20 Summitsrdquo
The Federal Deputy Minister was clear that in his view the police had sufficient authority
at common law and in statute to secure these conferences Similarly the OPP were of the
view that it was not necessary for the police forces to have any additional police powers
8 SC 1991 c 41 s 101(2) Attached as Appendix 5 is a copy of selected sections of the FMIOA 9 Attached as Appendix 6 is a copy of the May 7 2010 letter10 Attached as Appendix 7 is a copy of the letter received on June 11 2010
10
other than those already conferred by virtue of common law and statute (excluding the
PWPA) in order to secure the interdiction zones for the Summits
On May 12 2010 Chief William Blair of the TPS wrote to the Honourable Rick
Bartolucci Minister of Community Safety and Correctional Services11 stating that a
ldquocornerstonerdquo of the TPS security plan for the G20 Summit would be the establishment of
a security perimeter in an area around the Metro Toronto Convention Centre The
purpose of this security perimeter as explained in the letter was to ldquoensure the safety and
security of those attending the Summit the Summit site itself and people and property
within the area close to the Summit siterdquo Chief Blair indicated that the TPS would rely
upon the authority granted to it pursuant to the common law and if certain conditions are
met the FMIOA12 to establish and control the security perimeter However he believed
that the provisions of the PWPA ldquowould also offer legal support for the extraordinary
security measuresrdquo he believed would be necessary Chief Blair therefore requested ldquothe
Lieutenant Governor in Council to designate the area of or highways within the intended
security perimeter as a public work for the period from June 21 2010 through the end of
the Summit on June 27 2010rdquo A detailed description of the area requested to be
designated as a public work was provided to Minister Bartolucci as well as an aerial
photograph of the area
I am not aware that any organization publicly questioned the inherent police power to
erect fences defining the interdiction zone The Canadian Civil Liberties Association
11 See Appendix 312 This probably is in reference to s 101(4) of the FMIOA which provides the authority for the Minister of Public Safety and Emergency Preparedness to enter into arrangements with the government of a province concerning the responsibilities of members of the RCMP and members of the provincial and municipal police forces with respect to ensuring the security for the proper functioning of an intergovernmental conference
11
(ldquoCCLArdquo) published a document entitled ldquoProtecting civil liberties and human rights at
the G20 statement of concernsrdquo on May 21 201013 In this document the CCLA
expressed concern with the size of the security perimeter ldquoParticularly where there is a
primary fence to ensure safety around conference venues and delegate hotels any further
restrictions on mobility or protest must be fully and carefully justifiedrdquo14 However the
CCLA supported ldquothe overall goal of ensuring that the G20 is conducted in a manner that
is safe for delegates protesters and Toronto residents in generalrdquo15 and noted the
RCMPrsquos authority under the FMIOA There was no doubt expressed by the CCLA
concerning the power of police to erect security fences
By letter dated June 15 201016 Minister Bartolucci wrote to Chief Blair acknowledging
the request and stating in part
I agree that there are various sources of legal authority to support the security perimeter I also recognize the desirability of having additional sources of legal authority to ensure clarity regarding the ability of the Toronto Police Service to take the steps that it will be taking Accordingly I am pleased to inform you that a regulation has been made under the PWPA in response to your request
The Minister informed Chief Blair that O Reg 23310 had been filed with the Registrar
of Regulations and would come into force on June 21 2010 and would be revoked as of
June 28 2010 The area requested by Chief Blair to be designated as a ldquopublic workrdquo
was so designated in O Reg 23310
13 Canadian Civil Liberties Association Protecting civil liberties and human rights at the G20 statement of concerns May 21 2010 online Canadian Civil Liberties Association lthttpcclaorgwordpresswp-contentuploads201005G20-CCLA-Statement-of-Concernspdfgt14 Ibid p 415 Ibid p 316 Attached as Appendix 8 is a copy of the June 15 2010 letter
12
Four days earlier on June 11 2010 Mike McDonell the Assistant Commissioner of the
RCMP sent a letter to Chief Blair17 containing a thorough review of the statutory sources
of the RCMPrsquos duties and powers to secure intergovernmental conferences Assistant
Commissioner McDonell outlined the police authority to fully secure the G8 and G20
Summits
More specifically in relation to the Summits the RCMP will be taking measures to fulfill duties related to the protection of Internationally Protected Persons (IPPrsquos) that befall police in general and the RCMP in specific The official visit of the head of state or high ranking dignitary of a foreign country is an event that frequently engenders a real or apprehended threat to the preservation of peace which demands the adoption of proper and reasonable security measures in and by the host country
Furthermore Canada is a signatory of the United Nations Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons Including Diplomatic Agents In that regard Canada has specifically adopted laws requiring peace officers to protect IPPs as defined in section 2 of the Criminal Code in accordance with its international obligationshellip
Legal authorities also permit the RCMP to collaborate with other police forces such as the OPP in the fulfillment of its duties including in relation to securing the perimeter Such collaboration is essential in light of concurrent mandates of policing partners particularly in relation to the legal duties to preserve the peace and protect life and property
E O Reg 23310
On June 2 2010 Cabinetrsquos Legislation and Regulations Committee passed O Reg
23310 It was signed by the Lieutenant Governor on June 3 2010 and published on June
16 2010 on e-Laws a website maintained by the Government of Ontario not frequently
accessed by the public This website provides access to official copies of Ontariorsquos
statutes and regulations O Reg 23310 came into force on June 21 2010 and was
17 Attached as Appendix 9 is a copy of the June 11 2010 letter
13
revoked on June 28 2010 It was not published in The Ontario Gazette18 until July 3
2010 after it had already been revoked Section 23(2) of Ontariorsquos Legislation Act
200619 provides that a regulation is not effective against a person before the earliest of
when the person has actual notice of it the last instant on the day on which it is published
on the e-Laws website or the last instant of the day on which it is published in the print
version of The Ontario Gazette As a result though the technical requirements for
providing notice of O Reg 23310 were met I have concerns whether adequate notice
was given to the public especially in light of the fact that the regulation was not
published in The Ontario Gazette until it had already been revoked
The regulation set out the area where the security fence was to be erected and designated
that area as a ldquopublic workrdquo which then called into play all the powers provided by the
PWPA
ONTARIO REGULATION 23310
made under the
PUBLIC WORKS PROTECTION ACT
Made June 2 2010Filed June 14 2010
Published on e-Laws June 16 2010Printed in The Ontario Gazette July 3 2010
DESIGNATION OF PUBLIC WORKS
Designation 1 The following are designated as public works for the purposes of the Act 1 Everything described in clause (a) of the definition of ldquopublic workrdquo in section
1 of the Act that is located in the area described in Schedule 1 including without limitation and for greater certainty every sidewalk in that area
2 The places described in paragraphs 1 2 and 3 of Schedule 2
18 The Ontario Gazette contains Ontariorsquos legal notices and regulations19 SO 2006 c 21 Sched F
14
Revocation 2 This Regulation is revoked on June 28 2010
Commencement 3 This Regulation comes into force on the later of June 21 2010 and the day
it is filed SCHEDULE 1
AREA REFERRED TO IN PARAGRAPH 1 OF SECTION 1
The area in the City of Toronto lying within a line drawn as follows
Beginning at the curb at the southeast corner of Blue Jays Way and Front Street West then north to the centre of Front Street West then east along the centre of Front Street West to the east curb of Windsor Street then north along the east curb of Windsor Street to the centre of Wellington Street then east along the centre of Wellington Street to the centre of Bay Street then south along the centre of Bay Street to a point directly opposite the north wall of Union Station then west along the exterior of the north wall of Union Station to the centre of York Street then south along the centre of York Street continuing east of the abutments under the railway overpass and continuing south along the centre of York Street to the centre of Bremner Boulevard then west along the centre of Bremner Boulevard to the east curb of Lower Simcoe Street then south along the east curb of Lower Simcoe Street to the north curb of Lake Shore Boulevard West then west along the north curb of Lake Shore Boulevard West to the south end of the walkway that is located immediately west of the John Street Pumping Station and runs between Lake Shore Boulevard West and the bus parking lot of the Rogers Centre then north along the west edge of that walkway to the bus parking lot of the Rogers Centre then west along the south edge of the bus parking lot of the Rogers Centre to the west edge of the driveway running between the parking lot and Bremner Boulevard then north along the west edge of that driveway to the north curb of Bremner Boulevard then west along the north curb of Bremner Boulevard to the east curb of Navy Wharf Court then north along the east curb of Navy Wharf Court to the southwest point of the building known as 73 Navy Wharf Court then east along the exterior of the south wall of that building then north along the exterior of the east wall of that building to the curb of Blue Jays Way then north along the east curb of Blue Jays Way to the curb at the southeast corner of Blue Jays Way and Front Street West
SCHEDULE 2DESIGNATED PLACES REFERRED TO IN PARAGRAPH 2 OF SECTION 1
1 The area within the area described in Schedule 1 that is within five metres of a line drawn as follows Beginning at the south end of the walkway that is located immediately west of the John Street Pumping Station and runs between Lake Shore Boulevard West and the bus parking lot of the Rogers Centre then north along the west edge of that walkway to the bus parking lot of the Rogers Centre then west along the south edge of the bus parking lot of the Rogers Centre to the west edge of the driveway running between the parking lot and Bremner
15
Boulevard then north along the west edge of that driveway and ending at Bremner Boulevard
2 The area within the area described in Schedule 1 that is within five metres of a line drawn as follows
Beginning at the southwest point of the building known as 73 Navy Wharf Court then east along the exterior of the south wall of that building then north along the exterior of the east wall of that building and ending at the curb of Blue Jays Way
3 The below-grade driveway located between Union Station and Front Street West and running between Bay Street and York Street in the City of Toronto
F Information Given to Public Regarding Security Protocol
Attempts were made to inform the public about the security measures that would be in
place leading up to and throughout the G20 The City of Toronto in consultation with
the ISU produced an information article20 and flyers21 No mention is made in the article
or flyers of the PWPA or O Reg 23310 and the powers given to the police The City of
Toronto also prepared an advertisement which appeared in local newspapers22 The
original version of the advertisement made no reference to the fact that people would be
subject to a search when attempting to access the security perimeter although reference
was made to the requirement to show identification and to have a valid purpose for
entering the restricted area A later version of the advertisement included additional text
advising that anyone requesting access to the security perimeter may be subject to a
search However just as with the article and flyers no specific mention was made of the
PWPA or O Reg 23310
20 A million copies of the newsletter Our Toronto which contained an article entitled ldquoWhat to expect during the G20 ndash June 26 amp 27 2010rdquo were delivered to homes in the City of Toronto21 Approximately 10000 flyers were sent to homes and businesses within the affected area The flyercontained general information about security and the anticipated effects on traffic22 The advertisement appeared in the Toronto Star Toronto Sun and Metroland community papers
16
In the days leading up to and throughout the G20 Summit there was apparently a
misunderstanding on the part of the police regarding a purported ldquofive-metre rulerdquo This
confusion likely emanated from the ldquofive-metresrdquo referenced in Schedule 2 of O Reg
23310 However the purpose of Schedule 2 was to designate as ldquopublic work(s)rdquo three
specific private property locations on which the security fence was to be erected that were
not ldquopublic worksrdquo The remainder of the fence was on public sidewalks and streets
which are ldquopublic worksrdquo To ensure that the fence was located on a ldquopublic workrdquo the
drafters designated the area within five metres of the security fence in these three
locations as a ldquopublic workrdquo23 Unfortunately the wording of Schedule 2 was very
cumbersome and the relationship between the area defined in Schedule 1 and the five-
metre reference in Schedule 2 was difficult to understand
Because of this confusion unfortunately the message was conveyed that the regulation
provided for a five-metres zone outside the entire security fence and that therefore the
PWPA applied to this entire area24 The media reported during the G20 summit that the
police had ldquosweepingrdquo powers pursuant to the PWPA within five-metres outside of the
exterior security fence25 O Reg 23310 did not provide the police such authority
23 Attached as Appendix 10 is a copy of a map showing the three specific areas designated in Schedule 2 of O Reg 2331024 Jennifer Yang ldquoJust being near the G20 security zone can get you arrestedrdquo Toronto Star (25 June 2010) online thestarcom lthttpwwwthestarcomnewsgtatorontog20summitarticle828498--just-being-near-the-g20-security-zone-can-get-you-arrestedgt25 David Rider et al ldquoDalton McGuinty Bill Blair defend quiet boost in arrest powersrdquo Toronto Star (26 June 2010) online thestarcom lthttpwwwthestarcomnewsgtatorontog20summitarticle828974--dalton-mcguinty-bill-blair-defend-quiet-boost-in-arrest-powersgt
17
SECTION 3 COMMENTARY
A Public Policy Considerations
There are some overarching public policy considerations which affect the issues I have
been asked to address in the Terms of Reference
As stated earlier the legislation was the product of emergency World War II concerns
related to the possibility of enemy sabotage of important infrastructures The legislative
debates in September of 1939 were particularly concerned with the provincersquos
hydroelectric facilities However notwithstanding these apparently specific concerns
when drafted the definition of ldquopublic workrdquo is extraordinarily broad and from a policy
standpoint raises questions of overbreadth especially given the ability to designate
almost anything a public work In a mere definition section s 1 of the legislation allows
the Lieutenant Governor in Council to designate ldquoany other building place or workrdquo as a
ldquopublic workrdquo However taken to its logical conclusion an entire city or more could be
designated as a ldquopublic workrdquo The definition of ldquopublic workrdquo includes ldquoany provincial
and any municipal public buildingrdquo but ldquopublic buildingrdquo is not further defined thereby
creating an element of uncertainty as to the specific provincial and municipal buildings
captured by this definition While perhaps extreme measures in times of war require
flexibility in all other circumstances legislation of this nature requires limitations and a
more specialized approach
The expression ldquoprivate armyrdquo was used in the Ontario legislative debate in 1939
Theoretically at least private armies could be created through the use of the ldquoguardrdquo
appointing authority by the many individuals who are authorized to appoint guards
pursuant to the PWPA This authority was apparently in response to the Federal
18
Governmentrsquos refusal to assume through the Defence Department the responsibility of
guarding utilities and industries essential to the war effort While such a result might not
have been contemplated in a parliamentary democracy it is clearly unwise to leave such
a possibility open
Section 3 of the PWPA provides in part that a guard or a peace officer
(a) may require any person entering or attempting to enter any public work or any approach thereto to furnish his or her name and addresshellipand to state the purpose for which he or she desires to enter the public work in writing or otherwise
The primary problem I see with this section is the vagueness of the term ldquoapproach
theretordquo An approach could begin at a considerable distance from the public work
Section 6(b) also provides for the making of regulations ldquodefining the areas that
constitute approaches to public works either generally or with regard to a particular
public workrdquo
In addition s 3(b) of the PWPA provides that a guard or peace officer ldquomay search
without warrant any person entering or attempting to enter a public workrdquo This section
does not permit any person to abandon any attempt to enter a public work in order to
avoid being subjected to a warrantless search Such conduct is adopted by persons who
decide not to enter a secured courthouse in order to avoid a warrantless search
Section 4 provides that for the purposes of the PWPA the statement under oath made by
persons engaged in the operation of a public work ldquoas to the boundaries of the public
work is conclusive evidence thereofrdquo Section 4 should be considered with s 5(1) which
provides that ldquoevery person found upon a public work or any approach thereto without
lawful authority the proof whereof lies on him or her is guilty of an offencehellip(emphasis
19
added)rdquo The provision in s 4 that ldquothe statement under oathhellipis conclusive evidence
thereofrdquo appears to remove from a courtrsquos consideration what could be a legitimate
dispute as to the boundaries of a public work or the approach thereto Furthermore the
apparent reversal of the onus of proof regarding lawful authority to be found in a public
work or an approach found in s 5 is also troublesome from a policy and legal point of
view
Accordingly if utilized to the extreme many government officials could appoint many
private armies to restrict access to many (in fact any) public places where the mere
statement under oath by the private guard of the boundaries of the areas under restricted
access is conclusive proof thereof Such potential for abuse is beyond troubling to say
the least
B Review of other Public Reports
As is evident from the foregoing discussion many issues arise regarding the operation of
the PWPA in todayrsquos context These considerations and others also formed the basis of
concerns raised in public reports which I was asked to review
1 Reports of the Canadian Civil Liberties Association
The CCLA preliminary G20 report26 dealt with most of the police related events that
occurred in Toronto during the G20 conference during the weekend of June 26th and 27th
2010 I will only make reference to a few portions of the report that deal with the Terms
of Reference
26 Canadian Civil Liberties Association A Breach of the Peace ndash A Preliminary Report of Observations During the 2010 G20 Summit June 29 2010 online Canadian Civil Liberties Association lthttpcclaorgwordpresswp-contentuploads201006CCLA-Report-A-Breach-of-the-Peace-Preliminary-report-updated-July-8pdfgt
20
The report of the CCLA called for the repeal or significant amendment to the PWPA ldquoto
meet basic constitutional standardsrdquo27 The CCLA ldquosuggests that the broad police powers
granted under the Act are inconsistent with current Charter requirementsrdquo28
I agree with the observation of the CCLA that the provisions of the PWPA led to a ldquolack
of clarity as to the scope of the search and seizure powersrdquo29 which created many
difficulties and conflicts that probably could have been avoided I would also certainly
agree with a conclusory comment in this preliminary report that ldquoit is the duty of police
officers to act with fairness and equanimity toward all citizens in accordance with the law
of the country The presumption of innocence and the protection against arbitrary arrests
and detention are at the core of a commitment to justicerdquo30
The CCLA in partnership with the National Union of Public Employees organized
public hearings for two days in Toronto and one day in Montreal in November of 2010
which they referred to as a Citizens Inquiry The Citizens Inquiry heard from 63 members
of the public who had witnessed policing incidents or had been detained Several lawyers
and academics also participated in the hearing and offered commentary on the events of
the G20 from a legal or policing perspective including issues related to the PWPA A
report of the hearings titled ldquoG20 Toronto Breach of the Peace Public Hearingsrdquo was
released on February 28 2011 which also referred to the PWPA31
27 Ibid p 2228 Ibid p 929 Ibid p 1230 Ibid p 2131 Canadian Civil Liberties Association and the National Union of Public and General Employees G20 Toronto Breach of the Peace Public Hearings February 2011 online Canadian Civil Liberties Association lthttpcclaorgwordpresswp-contentuploads201102Breach-of-the-Peace-Final-Reportpdfgt
21
2 The Ontario Ombudsman Report
The Ontario Ombudsman commenced an investigation after receiving complaints relating
to a variety of issues concerning the G20 The Marin Report recognized that ldquotypically
international summits attract protests and protests can turn violent and even deadlyrdquo32
The report therefore does not quarrel with the requirement that a high level of security is
required for such events
The report in my view accurately describes the PWPA as ldquounique in Canada in terms of
the breadth of its reach and the powers it confershellipno other Canadian statute defining
lsquopublic worksrsquo contains provisions similar to those found in Ontariorsquos Actrdquo33
32 Ontario Ombudsman report Investigation into The Ministry of Community Safety and Correctional Servicesrsquo Conduct in Relation to Ontario Regulation 23310 under the Public Works Protection Act ldquoCaught in the Actrdquo by Andreacute Marin (Toronto Ombudsman of Ontario December 2010) online Ombudsman of Ontario lthttpwwwombudsmanoncamedia157555g20final1-enpdfgt (ldquoMarin Reportrdquo) at para 733 Ibid at para 97
22
SECTION 4 POWERS OF THE POLICE
Pursuant to the Terms of Reference I have been asked to consider for future purposes
whether the powers given to peace officers and guards under the PWPA are necessary to
protect public works secure intergovernmental conferences or for any other purposes
To answer that question it is necessary to assess whether the current common law and
statutory regime provide the police with sufficient powers to perform these vital services
A Common Law Powers and Powers Pursuant to Police Services Acts
The police have extensive common law powers that can be used in protecting and
securing intergovernmental conferences and in protecting public works It is necessary to
examine those powers in order to assess whether and what if any additional powers are
needed such as those provided by the PWPA
Of particular assistance in this regard is R v Knowlton34 where the Supreme Court of
Canada considered whether the powers possessed by peace officers at common law and
statute in securing an area for the protection of a foreign dignitary were lawful The
Supreme Court of Canada held that in order for the exercise of peace officer powers to be
lawful the powers must satisfy the two step test set out in R v Waterfield35 First the
power must be in furtherance of a lawful duty Traditional common law peace officer
duties include the preservation of the peace and the prevention of crime These common
law police duties amongst others are now statutorily enshrined in s 42(1) of Ontariorsquos
Police Services Act (and other provincial police services acts)36 The second part of the
test requires an evaluation of whether the conduct of the peace officer was ldquojustifiedrdquo To
34 [1974] SCR 443 [ldquoKnowltonrdquo]35 See for example R v Dedman [1985] 2 SCR 236 RSO 1990 c P15
23
do so one applies the standard of what is reasonably necessary in light of the totality of
the circumstances In evaluating whether the conduct of the peace officer was justified it
is important to consider ldquothe duty being performed the extent to which some interference
with individual liberty is necessary in the performance of that duty the importance of the
performance of the duty to the public good the nature of the liberty being interfered with
and the nature and extent of the interferencerdquo37
In Knowlton police in Edmonton cordoned off an area as part of the security
arrangements for the visit of Premier Kosygin of the USSR Premier Kosygin had been
assaulted in Ottawa a few days prior to his visit to Edmonton Knowlton entered the
secured area questioning the power of the peace officer to prevent his entry He was
arrested without a warrant and charged with obstructing a peace officer in the execution
of his duties Knowlton argued that the peace officer did not have the power to prevent
his entry and was not acting in the execution of his duty
The Supreme Court of Canada emphasized the heightened importance of security when
there are visiting foreign dignitaries38
It is notorious and of common knowledge that the official visit of the head of state or high rank dignitary of a foreign country friendly as either may be is an event that frequently engenders a real or apprehended threat to the preservation of peace and that calls therefore for the adoption of proper and reasonable security measures in and by the host countryhellipThe restriction of the right of free access of the public to public streetshellipwas one of the steps--not an unusual one--which police authorities considered and adopted as necessary for the attainment of the purpose aforesaid In my opinion such conduct of the police was clearly falling within the general scope of the duties imposed upon them
37 R v Mann [2004] 3 SCR 59 at 7938 Supra note 34 at 447-448
24
In addressing the first part of the Waterfield test the Court referenced provisions of the
Alberta Police Act and the Criminal Code and concluded that the conduct of the peace
officers fell within the general scope of the duties imposed upon them for example
preservation of the peace and prevention of crime39
According to the principles which for the preservation of peace and prevention of crime underlie the provisions of s 30 amongst others of the Criminal Code these official authorities were not only entitled but in duty bound as peace officers to prevent a renewal of a like criminal assault on the person of Premier Kosygin during his official visit in Canada In this respect they had a specific and binding obligation to take proper and reasonable steps The restriction of the right of free access of the public to public streets at the strategic point mentioned above was one of the steps--not an unusual one--which police authorities considered and adopted as necessary for the attainment of the purpose aforesaid In my opinion such conduct of the police was clearly falling within the general scope of the duties imposed upon them
In analyzing the second step of the Waterfield test the Court concluded that there was no
evidence indicating the police officers resorted to an unjustifiable use of the powers
associated with the duties imposed on them
The Court in Knowlton recognized broad police powers to cordon off areas as part of the
security arrangements involving internationally protected persons In addition the Court
found that the warrantless arrest in that case was not an unjustifiable or unreasonable use
of powers associated with the police duties to preserve the peace order public safety and
to enforce the law and prevent crime Finally the Court found that peace officers were
duty bound ldquoto prevent a renewal of a like criminal assault on the person of Premier
Kosygin during his official visit in Canadardquo40 Furthermore it stated the closing of public
39 Ibid 40 Ibid at 447
25
streets ldquowas one of the steps -- not an unusual one -- which police authorities considered
and adopted as necessaryrdquo41
The Knowlton decision clearly acknowledged that the police had the duty and authority to
establish and enforce a secured area to protect a foreign dignitary In order to carry out
these duties the police may do what is reasonably necessary in light of the totality of the
circumstances
Though Knowlton was decided prior to the enactment of the Canadian Charter of Rights
and Freedoms (the ldquoCharterrdquo) this does not in my view affect the clear statement by the
Supreme Court of Canada regarding the duty of the police under the common law and the
Alberta Police Act to provide this security While the facts of Knowlton were quite
compelling in relation to the obvious need to provide adequate security for Premier
Kosygin the decision is equally important authority regarding the general responsibilities
of the police at common law and statute in relation to the preservation of the peace
B Other Statutory Powers
1 Criminal Code
Some specific powers are provided to peace officers pursuant to the Criminal Code42
Section 31 gives peace officers the power to arrest an individual for breach of the peace
Peace officers can arrest those committing the breach of the peace or those who on
reasonable grounds heshe believe are about to join in or renew the breach of the peace
Peace officers also have powers at their disposal under ss 63-69 of the Criminal Code to
deal with the offences of unlawful assembly and riots
41 Ibid at 447-448 42 RSC 1985 c C-46
26
2 Trespass to Property Act
The Ontario Trespass to Property Act43 is a potential source of police power to arrest
without warrant those who are unlawfully on certain premises or who were recently
unlawfully on the premises and refuse to give their name and address44 This statute
deals with illegal entry into both private and public property by creating the offence of
trespass for those who without the express permission of the occupier enter on to
premises or engage in an activity on the premises when it is prohibited by the statute45
Though this statute is primarily used by private property owners to keep unwanted people
off of their property it has also been invoked by the Speaker of the House46 and by the
City of Toronto47 It must be noted however that using the Trespass to Property Act in
relation to removing individuals from ldquopublicrdquo places may raise Charter issues48
3 Foreign Missions and International Organizations Act
The RCMP as peace officers have the general duty to preserve the peace and prevent
crime and offences as set out in s 18 of the Royal Canadian Mounted Police Act49
Additional duties found in s 17 of the Royal Canadian Mounted Police Regulations
198850 include the protection of ldquointernationally protected personsrdquo as defined in s 2 of
the Criminal Code Internationally protected persons include heads of state and their
43 RSO 1990 c T2144 Ibid ss 9(1) 1045 Ibid s 2(1)46R v Behrens [2004] OJ No 5135 (CJ) The Court held that the issue of the trespass notices fell under the Speakerrsquos parliamentary privilege and were not reviewable even on the basis of a Charter argument47R v Semple [2004] OJ No 2137 (CJ)48 In R v Semple the defendants were charged under the Ontario Trespass to Property Act for entering the grounds of Toronto City Hall after being banned from doing so In the end the Court held that the defendantsrsquo peaceful entry onto the grounds was an expression as per s 2(b) of the Charter Torontorsquos notice under the Act infringed on this freedom and in these circumstances it could not be justified under s 1 of the Charter 49 RSC 1985 c R-1050 SOR88-361
27
family members The RCMPrsquos duty to protect internationally protected persons is also
found in s 6(1) of the Security Offences Act51
In addition Canada is a signatory of the United Nations Convention on the Prevention
and Punishment of Crimes against Internationally Protected Persons including
Diplomatic Agents52 This Convention provides that the Government of Canada must
protect visiting heads of state or government foreign ministers representatives or
officials of a state or any official or other agent of an international organization of an
intergovernmental character and the family members that accompany him or her The
RCMP has the responsibility to carry out these security measures
Pursuant to s 101(1) of the FMIOA ldquoThe Royal Canadian Mounted Police has the
primary responsibility to ensure the security for the proper functioning of any
intergovernmental conference in which two or more states participate that is attended by
persons granted privileges and immunities under this Act and to which an order made or
continued under this Act appliesrdquo
The powers to carry out this mandate are found in s 101(2) of the FMIOA ldquothe Royal
Canadian Mounted Police may take appropriate measures including controlling limiting
or prohibiting access to any area to the extent and in a manner that is reasonable in the
circumstancesrdquo It is noteworthy that the FMIOA has legislated the same powers
provided to the police under common law and statute
In order to trigger the RCMP powers described in s 101 the Governor in Council on the
51 RSC 1985 c S-752 UNGA Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons including Diplomatic Agents 20 February 1977 UN Doc I-15410
28
recommendation of the Minister of Foreign Affairs and pursuant to s 5 of the FMIOA
made the G8 Summit Privileges and Immunities Order 201053 on December 10 2009
This order was repealed and a subsequent order54 was made on January 13 2010 A
similar order55 for the G20 Summit was made on March 11 201056
Therefore during the G20 the RCMP had the specific statutory power to limit or
prohibit access to any area and to any extent as long as the measures were appropriate
and done in a manner that was reasonable in the circumstances ldquoThe RCMP may secure
the perimeter of the security zone on land with fencing and restrict access to this zone
through the use of checkpoints and other measuresrdquo57
Though not invoked during the G20 s 101(4) of the FMIOA provides that arrangements
can be entered into with a province concerning the responsibilities of members of the
RCMP and members of the provincial and municipal police forces with respect to
ensuring the security for the proper functioning of an intergovernmental conference No
information was provided to me as to why such an arrangement was not entered into for
the G20
These intergovernmental security provisions of the FMIOA were enacted just prior to the
G8 being held in Kananaskis Alberta in 2002 In light of violent protests at international
events and the 911 terrorist attacks in the United States the Federal Government
53 SOR2009-33654 SOR2010-1355 SOR2010-6256 Supra note 17 ldquoUpon such an Order being made the RCMP in co-operation and collaboration with other police forces becomes impressed with the primary responsibility of ensuring not only the protection of the IPPs but also ensuring lsquosecurity for the proper functioningrsquo of the intergovernmental conference To that end the FMIOA provides that the lsquoappropriate measures including controlling limiting or prohibiting access to any area to the extent and in a manner that is reasonable in the circumstancesrsquo may be takenrdquo57 Ibid
29
considered it timely ldquoto clarify in statute the present common law authority for police to
provide security and protection for high profile international eventsrdquo58 At such events it
was intended that ldquothe RCMP is the lead to make sure that security is providedrdquo59
Given that it was clearly the intention of the Federal Government to have the RCMP as
the lead police force at these international events consideration should be given to
expand the use of the FMIOA to cover all large scale international events such as the
Olympics the Pan American Games and international trade fairs as these events are
routinely attended by heads of state and senior government officials Most recently
Vancouver held the 2010 Olympic and Paralympic Winter Games60 Though federal and
municipal legislation were passed to assist in securing the Games expansion and
application of the FMIOA would have been a better approach The RCMP as the national
police force ought to be in charge pursuant to their authority under the FMIOA
4 Emergency Legislation
Through my consultations with the parties listed in Appendix 2 I heard that while we are
not in a time of war as in 1939 when the PWPA was enacted we live in an age of
international and local terrorism threats Our democratic society must be vigilant in
58 Canada House of Commons Debates 37th Parl 1st Sess No 93 (5 October 2001) at 100059 Canada House of Commons Standing Committee on Public Safety and National Security 40th Parl 3rd
Sess Evidence (25 October 2010)60 In anticipation of this event the Governor General in Council on the recommendation of the Minister of Transport pursuant to the Aeronautics Act (RSC 1985 c A-2) and the Canadian Air Transport Security Authority Act (SC 2002 c 9 s 2) passed the Vancouver 2010 Aviation Security Regulations (SOR2009-298) The purpose of the regulations was to enhance aviation security during the Games The Regulation provided for extra security and extra authorized means to conduct screenings In addition the Vancouver City Council passed the very lengthy By-law No 9962 known as the ldquoVancouver 2010 Olympic and Paralympic Winter Games By-Lawrdquo Specific security measures to be employed at a city live site (described thoroughly in a Schedule to the By-Law) that were enabled by this By-Law included The installation and monitoring of airport style and other security measures including magnetometers and X-ray machines the installation and monitoring of closed circuit television cameras the searching of any person who wished to enter on to a city live site and any bag luggage or other container carried by such person and the prohibiting of access to or removal from a city live site any person who refused to submit to a search
30
maintaining a proper level of security while recognizing that democratic values and
security issues can conflict where public order is at issue It is important to highlight that
provincial legislation exists dealing with both terrorism threats and emergency situations
I have been informed that federal and provincial counter-terrorism plans exist that
address preventing and responding to acts of terrorism
The Police Services Act regulations mandate police forces to establish procedures
consistent with federal and provincial counter-terrorism plans61 and to have policies with
respect to counter-terrorism62 In addition the Emergency Management and Civil
Protection Act allows for orders to be made in situations specifically designated an
ldquoemergencyrdquo63 by the Lieutenant Governor in Council or the Premier that regulate or
prohibit travel and movement to from or within any specified area64 Therefore the
PWPA is not needed to deal with these emergency situations as specific more recent
emergency legislation is in place for that very purpose
C Gaps in Canadian Police Powers
The Ministry of Community Safety and Correctional Services provided me with an
interesting article published in 2010 entitled ldquoThe Gap in Canadian Police Powers
61 Adequacy and Effectiveness of Police Services O Reg 399 s 2862 Ibid s 2963 Section 1 of the Emergency Management and Civil Protection Act defines an ldquoemergencyrdquo as ldquoemergencyrdquo means a situation or an impending situation that constitutes a danger of major proportions that could result in serious harm to persons or substantial damage to property and that is caused by the forces of nature a disease or other health risk an accident or an act whether intentional or otherwise (ldquosituation drsquourgencerdquo)64 RSO 1990 c E9 s 702(4)
31
Canada needs lsquoPublic Order Policingrsquo Legislationrdquo and co-authored by Wesley Pue and
Robert Diab65
This article was prompted by the debate over the cost nature and extent of security to be
employed at the Vancouver 2010 Winter Olympics The authors criticized the fact that
policing authorities in Canada ldquolack specific statutory authorization to take measures
commonly thought necessary to their missionrdquo66 These measures included security
fences in public areas designated protest areas restricted access to public space police
surveillance and searches without cause
The authors recognize that such powers may be necessary but note that ldquono legislature
has ever expressly conferred such powers on policing authorities outside the context of
international intergovernmental conferences Nor does the common law accord such
powers to state officials on its ownrdquo67 I respectfully disagree with this latter statement
It is my view the police have powers pursuant to the common law and statute as I have
discussed in the preceding section
The authors referred to R v Knowlton68 which I have previously discussed While the
authors give Knowlton a very narrow interpretation stating that ldquoits binding principle is a
good deal narrower than the words taken out of context might suggestrdquo69 I however am
of the view that the decision supports the proposition that police have a broad range of
65 Wesley Pue and Robert Diab ldquoThe Gap In Canadian Police Powers Canada Needs lsquoPublic Order Policingrsquo Legislationrdquo (2010) 28 Windsor Rev Legal Soc Issues 87 Wesley Pue is a professor of legal history at the University of British Columbia and Robert Diab is a PhD candidate at the UBC Faculty of Law66 Ibid p 8867 Ibid68 Supra note 3469 Supra note 65 p 92
32
responsibilities with deep historical roots in the common law and codified in statute a
position shared by the Federal Government when it introduced amendments to the
FMIOA The actions of the police in Knowlton were necessarily incidental to their
common law police duties and powers
The authors conclude that this ldquoauthority of police to create zones of exclusion either as
an incident of the general and ancient duties of constableshelliphas never been established in
the courtsrdquo70 I am of the view however that the role of the police in establishing
security zones relating to a crime a serious accident or other emergency is a routine and
well-accepted use of police powers pursuant to their common law and statutory duties I
am not suggesting that this common law authority permits the police to establish security
zones ldquofor the proper functioning of any intergovernmental conference in which two or
more states participaterdquo71 larger than necessary to fulfill their purpose The FMIOA as
amended in 2002 provides the RCMP with ldquoprimary responsibility to ensure the security
for the proper functioning of the intergovernmental conferencerdquo72 It is interesting
however that when the Federal Government was enacting this specific authority the
legislative debates indicated that the government was merely clarifying ldquoin statute the
present common law authority for police to provide security and protection for high
profile international eventsrdquo73
Security perimeters are routinely erected by police in the context of the commission of a
crime motor vehicle and other accidents as well as the Santa Claus parade and other
70 Ibid p 9671 Supra note 8 s 101(1)72 Ibid73 Supra note 58
33
parades It would in my view be quite impractical and unnecessary to legislate an
extensive code of police powers given their common law and statutory responsibilities to
generally maintain public order It is not advisable in my opinion to be prescriptive in
any way regarding what actions the police can take since they must assess what the
situation warrants while at the same time considering individual rights and freedoms
The details of any police response to an emergency must be tailored to the exigencies
related to the situation
The police clearly have common law and statutory authority to conduct warrantless
searches in specific situations (ldquoin exigent circumstancesrdquo)74 However when
warrantless searches must be carried out on a regular routine basis the police are acting
more like full time security guards and there should be specific statutory authority
provided to give such powers
I certainly accept the general proposition the authors assert that the mobility rights of
citizens should not be unreasonably or unfairly dealt with However one only need be
aware of the massive amount of construction taking place on the streets of Toronto as this
Report is being written to appreciate that it is not always reasonable to expect that ldquothe
rights of businesses homeowners and ordinary citizens to go about their routine
activities without interruptionrdquo75 will go unhindered While generally desirable it cannot
be legally guaranteed At the same time the authors do concede that ldquoimportant as they
74 Supra note 42 s 4871175 Supra note 65 p 89
34
are the rights of assembly movement and protest are not unqualified They can ndash and
should ndash be balanced against other important public needsrdquo76
In my view public policing at times requires innovation as it often benefits from
creative problem solving If police abuse their common law powers related to ldquopublic
order policingrdquo they are accountable to a multiplicity of authorities and the rule of law
most particularly the Charter The legal rights outlined in the Charter such as ldquothe
principles of fundamental justicerdquo77 security ldquoagainst unreasonable search and seizurerdquo78
and ldquothe right not to be arbitrarily detained or imprisonedrdquo79 are described very
generally However they were chosen deliberately as it was recognized that in each case
there is an inherent tension between imposing security measures and fundamental rights
and freedoms Determining which is paramount will be based on the facts of each case
76 Ibid p 9177 Canadian Charter of Rights and Freedoms s 7 Part I of the Constitution Act 1982 being Schedule B to the Canada Act 1982 (UK) 1982 c 1178 Ibid s 879 Ibid s 9
35
SECTION 5 LEGAL ANALYSIS OF THE PUBLIC WORKS PROTECTION ACT
A Legal Analysis of the Legislation
Many stakeholders have questioned the constitutional validity of the PWPA and O Reg
23310 The Ontario Ombudsman seriously questioned whether O Reg 23310 could
pass ldquoconstitutional musterrdquo80 The CCLA suggested that the broad police powers
granted under the PWPA were inconsistent with the Charter81
To the same effect were comments made by Premier Dalton McGuinty who described
the PWPA as ldquoan archaic law that was used to undermine Torontoniansrsquo civil rights
during the G20rdquo82 He elaborated83
The issue is whether itrsquos appropriate given our present-day values and given an old law which I am confident doesnrsquot strike the balance that you and I would want today in terms of public safety and individual freedom of expressionhellipWhen you start talking about civil rights individual freedoms yoursquore talking about those things that in fact define us as a free and democratic societyhellipItrsquos something that is real and meaningful and important to all of us
The Terms of Reference for this Review do not require that I conduct a constitutional
analysis of the PWPA I have however been asked to consider areas for reform and if
appropriate make specific recommendations for amendment or repeal This does require
that I therefore consider whether the legislation may be vulnerable to constitutional
challenge
Section 2(b) of the Charter guarantees everyone the fundamental freedom of expression
The definition of ldquoexpressionrdquo has been interpreted broadly ldquoActivity is expressive if it
80 Supra note 32 at para 23381 Supra note 26 p 982 Robert Benzie and Rob Ferguson ldquoMcGuinty shifts focus to fixing G20 lawrdquo Toronto Star (10 December 2010) online thestarcom lthttpwwwthestarcomnewscanadaarticle905436--mcguinty-shifts-focus-to-fixing-g20-lawgt 83 Ibid
36
attempts to convey meaningrdquo84 While freedom of expression is not absolute there is
very little that is not considered expression However expression that advocates violence
is not protected under s 2(b)85
The Supreme Court of Canada in Committee for the Commonwealth of Canada v
Canada held that s 2(b) ldquodoes not encompass the right to use any and all government
property for purposes of disseminating onersquos views on public matters but I have no doubt
that it does include the right to use for that purpose streets and parks which are dedicated
to the use of the public subject no doubt to reasonable regulation to ensure their
continued use for the purposes to which they are dedicatedrdquo86 It seems clear that
protesting in public streets is a form of expression protected by s 2(b) Protesting at an
intergovernmental conference is clearly expressive in nature
In challenges alleging that a statute contravenes s 2(b) of the Charter a court would
examine whether the purpose or effect of a law contravenes section 2(b)87 There is no
reason to suggest that the purpose of the PWPA was to infringe the freedom of
expression The purpose of the PWPA is to protect important public infrastructures A
court would then have to consider whether the effect of the PWPA may have resulted in
an infringement of freedom of expression
O Reg 23310 defined significant portions of downtown Toronto as a ldquopublic workrdquo
Section 3(c) of the PWPA allows peace officers to refuse entry into public works which
therefore limits the areas in which protesters could express themselves By creating the
84 Irwin Toy Ltd v Queacutebec (Attorney General) [1989] 1 SCR 927 at 96885 Ibid at 97086 [1991] 1 SCR 139 at 165-16687 Peter Hogg Constitutional Law of Canada loose-leaf (consulted on 7 January 2011) 5th ed (Toronto Thomson Reuters Canada Limited 2007) at 43-6
37
relatively large security perimeter designated by the regulation individuals may allege
they were not permitted to communicate directly with those they were protesting against
Furthermore individuals could not communicate in public places such as public streets
where the right to freedom of expression has previously been found to exist88
Commissioner Ted Hughes completed an interim report following a public hearing into
the complaints regarding events that took place with respect to the Asia Pacific Economic
Cooperation (APEC) Conference in Vancouver British Columbia in November 1997
Commissioner Hughes recommended that generous opportunity should be afforded to
peaceful protesters to be seen in their protest activities by guests at the event89
Section 7 of the Charter provides that ldquoEveryone has the right to life liberty and security
of the person and the right not to be deprived thereof except in accordance with the
principles of fundamental justicerdquo The PWPA raises issues regarding the liberty and
security of the person in providing for warrantless searches and stopping for
identification Furthermore vague laws offend two fundamental values of our legal
system90 Firstly individuals are not provided with sufficient guidance as to what
behaviour a law prohibits Secondly those in charge of enforcing the law are not
provided with clear guidance as to how to enforce it A vague law can lead to inconsistent
and arbitrary enforcement91
88 Supra note 86 89 Canada Commission for Public Complaints Against the RCMP APEC ndash Commission Interim Report (31 July 2001) at s 3111 (Commissioner Ted Hughes QC) online Commission for Public Complaints Against the RCMP lthttpwwwcpc-cppgccaprrrepphrapecapec-31-engaspxgt90 Supra note 87 at 47-60 91 ldquoA vague provision does not provide an adequate basis for legal debate that is for reaching a conclusion as to its meaning by reasoned analysis applying legal criteria It does not sufficiently delineate any area of risk and thus can provide neither fair notice to the citizen nor a limitation of enforcement discretion Such
38
As described by Professor Hogg92
The requirement that any limit on rights be prescribed by law reflects two values that are basic to constitutionalism or the rule of law First in order to preclude arbitrary and discriminatory action by government officials all official action in derogation of rights must be authorized by law Secondly citizens must have reasonable opportunity to know what is prohibited so that they can act accordingly Both these values are satisfied by a law that fulfils two requirements (1) the law must be adequately accessible to the public and (2) the law must be formulated with sufficient precision to enable people to regulate their conduct by it and to provide guidance to those who apply the law
As I stated earlier the phrase ldquoany approach theretordquo contained in s 3(a) of the PWPA is
potentially vague No criteria are provided to assist in determining when one is on ldquoany
approach theretordquo A phrase such as ldquoany approach theretordquo is subject to many potential
interpretations It is arguable that this language does not provide reasonable guidance for
individuals to obey the law and for the law to be consistently enforced
Section 8 of the Charter provides that ldquoEveryone has the right to be secure against
unreasonable search or seizurerdquo A warrantless search or seizure is only reasonable if the
search was authorized by law the law itself is reasonable and the manner in which the
search carried out was reasonable93 The fact that no reasonable or probable suspicions
are needed to carry out a search pursuant to s 3(b) of the PWPA raises some issues The
only prerequisite to such a search is that the person or vehicle being subjected to a search
is entering or attempting to enter a public work
a provision is not intelligible to use the terminology of previous decisions of this Court and therefore it fails to give sufficient indications that could fuel a legal debaterdquo (R v Nova Scotia Pharmaceutical Society [1992] 2 SCR 606 at 639-640) 92 Supra note 87 at 38-1293 R v Nolet [2010] SCJ No 24 at para 21
39
Whether the PWPArsquos s 3(b) authority to undertake warrantless searches is ldquoreasonablerdquo
depends on the reasonableness of the impact on the subject of the search ldquoThe
individuals reasonable expectation of privacy must of course be balanced against the
public interest in effective law enforcementrdquo94 It is harder to justify a warrantless search
where the reasonable expectation of privacy is higher For example interference with
bodily integrity will raise the standard of reasonableness Conversely in situations where
people expect to have a lower level of privacy the standard to prove reasonableness is
lower
One rightfully has some expectation of privacy when in public but it does not rise to the
level of privacy that one expects in onersquos home The expectation of privacy further
decreases when one attempts to enter a ldquopublic workrdquo especially in the context of a
secured barrier to an intergovernmental conference
Section 9 of the Charter provides that ldquoEveryone has the right not to be arbitrarily
detained or imprisonedrdquo95 Under s 3(a) of the PWPA a person entering or attempting to
enter or approach a public work must provide his or her name and address and state the
purpose for which he or she desires to enter the public work In order for a guard or
peace officer to carry out this duty the guard or peace officer may ldquostoprdquo the person from
further approaching or entering the public work and the person is not permitted under the
statute to decide not to enter By so doing it is arguable the guard or peace officer has
assumed control over the movement of the individual by a demand or direction The
94 R v Rao [1984] OJ No 3180 at para 79 (CA)95 ldquoDetention under s 9hellipof the Charter refers to a suspension of the individualrsquos liberty interest by a significant physical or psychological restraint Psychological detention is established either where the individual has a legal obligation to comply with the restrictive request or demand or a reasonable person would conclude by reason of the state conduct that he or she had no choice but to complyrdquo (R v Grant [2009] SCJ No 32 at para 44)
40
PWPA provides for a significant legal consequence if the demand or direction is not
followed since ldquoEvery person who neglects or refuses to comply with a request or
direction made under this Act by a guard or peace officer and every person found upon a
public work or any approach thereto without lawful authority the proof whereof lies on
him or her is guilty of an offence and on conviction is liable to a fine of not more than
$500 or to imprisonment for a term of not more than two months or to bothrdquo96
Pursuant to s 3(b) of the PWPA a guard or peace officer may search any person entering
or attempting to enter a public work These searches would necessitate the detention of a
person If a guard or peace officer performs such a search he or she has taken control
over the movement of the person by a demand or direction The same serious legal
consequence results from failing to obey this demand or direction as that which results
from failing to obey the demand or direction pursuant to s 3(a) of the PWPA As a
result ldquodetentionsrdquo could occur pursuant to both s 3(a) and s 3(b) of the PWPA
The question that would need to be addressed in any challenge to the PWPA is whether
the detentions permitted by the PWPA are arbitrary in nature The use of the term ldquoany
approach theretordquo is vague and imprecise A person could be deemed to be on ldquoany
approach theretordquo a great distance from the entrance of a public work and their detention
might very well be arbitrary In addition the fact that the guards and peace officers
determine the boundaries of the ldquoapproachesrdquo which cannot be contested seems
arbitrary as well as who they chose to search
96 It should be noted that not all communications with state authorities and police officers will amount to a detention The question is whether a person may reasonably believe that he or she is free to refuse to comply
41
Section 11(d) of the Charter provides that ldquoAny person charged with an offence has the
right to be presumed innocent until proven guilty according to law in a fair and public
hearing by an independent and impartial tribunalrdquo This requires that the Crown have the
burden of proving the guilt of an individual charged with an offence97 Provisions that
place the burden on the accused to disprove on the balance of probabilities an essential
element of an offence raises s 11(d) concerns because convictions would be possible
even if reasonable doubt existed98 The presumption of innocence is not only infringed
upon by a requirement that an accused disprove an essential element of an offence but
also any requirement on an accused to prove a fact on the balance of probabilities to
avoid conviction
Section 5(1) of the PWPA states that ldquoEvery person who neglects or refuses to comply
with a request or direction made under this Act by a guard or peace officer and every
person found upon a public work or any approach thereto without lawful authority the
proof whereof lies on him or her is guilty of an offence and on conviction is liable to a
fine of not more than $500 or to imprisonment for a term of not more than two months or
to bothrdquo For the offence of being found upon a public work or on any approach to a
public work without lawful authority the burden of proof has been ldquoshiftedrdquo from the
Crown to the accused to prove lawful authority
As the foregoing analysis reveals there are certainly many concerns that arise when one
places the PWPA under the lens of the Charter However the rights and freedoms
provided by the Charter are not absolute They are ldquosubject only to such reasonable
97 R v Oakes [1986] 1 SCR 10398 Ibid at 132
42
limits prescribed by law as can be demonstrably justified in a free and democratic
societyrdquo99
In assessing whether a law which infringes the Charter is saved by s 1 a court examines
both the object of the law and the measures taken to achieve that objective A lawrsquos
objective achieves the status of being sufficiently important to justify overriding a
Charter right only when it is consistent with the values of a free and democratic society
The objective must relate to pressing and substantial concerns and not concerns that are
trivial and must be focussed on ldquothe realization of collective goals of fundamental
importancerdquo100 The measures adopted must be ldquorationally connectedrdquo to the objective of
the law101 The measures ldquoshould impair lsquoas little as possiblersquo the right or freedom in
questionrdquo102 Furthermore there must be ldquoa proportionality between the effects of the
measures which are responsible for limiting the Charter right or freedom and the
objective which has been identified as of lsquosufficient importancersquordquo103
An issue that may affect whether the potential limitation on rights and freedoms of the
PWPA and O Reg 23310 were ldquoprescribed by lawrdquo is whether the regulation was
adequately accessible to the public The Ontario Ombudsman the CCLA and the Ontario
Bar Association (ldquoOBArdquo) all noted a lack of notice regarding O Reg 23310 and its
effects prior to and during the G20 While the text of the regulation was available prior
99 Charter s 1 The Superior Court of Quebec decision of Tremblay v Queacutebec (Attorney General) [2001] JQ No 1504 (CS) involved an interim injunction brought by an applicant who was denied entry into the secured perimeter during the 2001 Summit of the Americas in Queacutebec City The applicant sought an injunction to either eliminate the security barrier or to be given a pass to let him within the secured perimeter Even though the Court held that the erection of the security zone violated the applicantrsquos right to freedom of expression and peaceful assembly The court held that the infringement was ldquodemonstrably justified in a free and democratic societyrdquo100 Supra note 97 at 136101 Ibid at 139102 Ibid103 Ibid
43
to the G20 it was only available on a website not frequently accessed by the public
Since O Reg 23310 was not published in The Ontario Gazette until after it was
revoked it may be that the regulation was not adequately accessible to the public
Reverse onus offences have been found to be ldquorationally connectedrdquo when there is plainly
a rational connection between the proven fact and the fact to be presumed Reverse
onuses have also been upheld when the burden placed on the Crown would be virtually
impossible to meet (such as proving sanity)104 Even if the accused only has the burden
of disproving the fact that heshe did not have lawful authority to be in a public work or
on an approach thereto there may not be a rational connection between the proven fact
and the fact to be presumed
The history of threats and violence at previous intergovernmental conferences
demonstrated that the protection of G20 participants was a pressing and substantial
concern However given the broadness of the PWPA every exercise of it raises the
potential for Charter scrutiny
Recommendation
Given the public policy considerations I have raised regarding the PWPA and Charter
concerns that could arise I recommend that the PWPA be repealed after the Province has
considered potential policy and security gaps as a result of its repeal
B Other uses of the Public Works Protection Act
It appears from my consultations with stakeholder groups that if the PWPA is repealed
104 R v Chaulk [1990] 3 SCR 1303 at 1340
44
there are two areas which may require legislation to provide specific peace officer
powers These two areas are court security and the protection of nuclear power facilities
and other power generating infrastructures
1 Court Security
During my decade as Ontariorsquos Attorney General (1975 to 1985) there were three
murders in provincial courthouses as well as many threats to members of courthouse staff
and others As violent acts in courthouses can be anticipated courtroom security is often
required
Individuals are compelled to go to court for a variety of reasons such as appearing as an
accused as a witness or for jury duty To provide protection to those who work there or
are compelled to attend an adequate level of court security may require a search without
warrant of each and every individual who seeks to enter a courthouse It is not reasonable
to require prior judicial authorization for each search that takes place
The courts have considered the constitutionality of these provisions of the PWPA in
conjunction with section 137 of the Ontario Police Services Act in the context of court
security
Section 137 of the Ontario Police Services Act imposes a responsibility on municipal
police services boards to secure the premises where court proceedings are conducted and
includes
1 Ensuring the security of judges and of persons taking part in or attending proceedings
45
2 During the hours when judges and members of the public are normally present ensuring the security of the premises
3 Ensuring the secure custody of persons in custody who are on or about the premises including persons taken into custody at proceedings
4 Determining appropriate levels of security for the purposes of paragraphs 1 2 and 3
In R v Campanella105 Ms Campanella was attending the John Sopinka Courthouse in
Hamilton At the courthouse there were signs posted stating that those who entered
would be searched for weapons When Ms Campanellarsquos bag was searched marijuana
was found and she was charged with the possession of marijuana She argued that her s
8 Charter protection against unreasonable search and seizure had been violated and the
marijuana discovered during the search should therefore be excluded as evidence The
trial judge and the summary convictions appeal court rejected the section 8 Charter
argument and the appellant appealed to the Ontario Court of Appeal
The Ontario Court of Appeal agreed that ldquogiven the importance of the government
objective and the context in which these searches take place it is reasonable to authorize
warrantless searches of those entering courthouse facilitiesrdquo106 The Court stated ldquothe
only effective way to diminish the risk in a large courthouse is to subject everyone
without prior security clearance to some kind of inspection I can see no other feasible
means of achieving the aimrdquo107
The Court also pointed out the concern relating to the erosion of the benefits and
105 [2002] OJ No 5104 (SCJ) affrsquod [2005] OJ No 1345 (CA) [ldquoCampanellardquo]106 R v Campanella [2005] OJ No 1345 at para 17 (CA)107 Ibid at para 19
46
protections conferred by s 8 of the Charter108
I am sensitive to the concern that we should not erode the benefits and protections of s 8 by gradually sanctioning ever-greater intrusions into privacy because of unfounded fears We should not lightly accept that searches in public places are justified solely because people have become used to them and expect them However the record in this case establishes the justification for the kinds of searches carried out in this case
Ultimately the appeal was dismissed and s 137 of the Police Services Act and s 3(b) of
the PWPA) were held to comply with s 8 of the Charter109
In its consultations with me the OBA similarly stated that the existing nature of court
security is necessary and is generally ldquowell toleratedrdquo At the same time however it
submits that the security regime should not be ldquoshoehornedrdquo into the PWPA regime and
that it would be preferable to provide a legislative framework tailored for the specific
security requirements While the PWPA has been relied upon as support for the exercise
of powers by the police in providing court security the OBA submits that the PWPArsquos
ldquosingle security schemerdquo which declares something a ldquopublic workrdquo is an ldquoawkward
blunt instrument in a world where more specialized tools are necessaryrdquo When
warrantless searches are being done on a routine basis it is advisable to have specific
legislation providing peace officers with such power
Recommendation
Court security legislation is currently in place in many jurisdictions across Canada and
contain provisions that permit warrantless searches of persons wanting to access a
108 Ibid at para 25109 The Court in R v SS [2005] OJ No 5002 (SCJ) agreed with the findings and rationale of the Court of Appeal in Campanella
47
courthouse The constitutional validity of such legislation in Manitoba was upheld by that
provincersquos highest court110
Given the ongoing need for warrantless searches at courthouses the Province of Ontario
should consider specific court security legislation in Ontario to support the security
measures in our courthouses if the PWPA is to be repealed taking into consideration the
responsibilities of the municipal police services boards provided in s 137 of the Police
Services Act This legislation should only be passed after proper notice consultation and
legislative debate
2 Power Generating Infrastructures
It is clear from the submissions that I received from representatives of OPG and the
Canadian Nuclear Safety Commission (ldquoCNSCrdquo) that the PWPA currently plays a role in
providing security officers with the powers to secure power generating infrastructures
including the ability to carry firearms and the ability to stop and require identification
from those in proximity to those nuclear plants
Security is of the utmost importance in protecting a nuclear power plant Members of the
public do not need to access a nuclear or similar power facility unless employed at the
facility or carrying out work for the facility111
The security of areas within nuclear power plants is governed by the Nuclear Security
110 R v Lindsay [2004] MJ No 380 (CA) 111 Though the discussion focuses on nuclear power plants I have been informed that other power generating infrastructures use the PWPA to designate their security officers as guards As a result if the PWPA is repealed it will be necessary to broaden the consultations in relation to these other power generating infrastructures
48
Regulations112 Every nuclear power plant must be located within a ldquoprotected areardquo113
This protected area is the area within a fenced perimeter which is alarmed and
continually patrolled This area must be equipped with devices that employ two
independent systems to detect intrusion into the area114 The Nuclear Security
Regulations also provide detailed specifications for the barrier which must enclose the
protected area115 In addition licensees must ldquoidentify all vital areas and implement
physical protection measures ndash including access control and measures designed to delay
unauthorized accessrdquo116
The Nuclear Security Regulations also provide detailed provisions regarding entry into
protected areas No person can ldquoenter a protected area without physical proof of the
recorded authorization of the licenseerdquo117 Further to this on entry into a protected area
ldquothat personrsquos identity shall be verified by two separate personnel identity verification
systems one of which is an access card reader and the other of which is a biometric
personnel identity verification devicerdquo118 Licensees must also ldquoensure that vehicle
portals are used for the entry and exit of land vehicles into and from a protected areardquo119
Physical protection measures are also required to reduce the chance of a forced land
vehicle entry into a protected area120
The power to conduct searches upon entry to a protected area is also provided by the
112 SOR2000-209 113 Ibid s 8114 Ibid s 11(a)(i)115 Ibid s 9116 Ibid s 141117 Ibid s 17(1)118 Ibid s 171119 Ibid s 91(1)120 Ibid s 91(4)
49
Nuclear Security Regulations Signs must be posted that are visible to people about to
enter the protected area stating that they must allow a nuclear security officer (ldquoNSOrdquo) to
ldquosearch them and everything in their possession including any land vehicle for weapons
and explosive substancesrdquo121 In addition when leaving the protected area people must
allow NSOs to ldquosearch them and everything in their possession including any land
vehicle for Category I II or III nuclear materialrdquo122 People are not permitted to enter or
leave a protected area unless these searches are carried out123 The Nuclear Security
Regulations provide for the method of search including ldquoa hand-held scanner a walk-
through scanner or any similar devicerdquo124 In addition if an NSO determines it
necessary a frisk search can be carried out by a person of the same sex125
I have been informed that the area outside of but adjacent to the ldquoprotected areardquo is
referred to as the ldquocontrolled areardquo This area includes roadways and waterways within
the nuclear facilityrsquos property boundaries adjacent to or in close proximity to the nuclear
power plantrsquos protected area and may be generally accessible to the public
As a result of the September 11 2001 terrorist attacks the Nuclear Security Regulations
were amended to require that high security nuclear facilities maintain an on-site armed
Nuclear Response Force (ldquoNRFrdquo)126 The NRF is composed of specialized NSOs
Section 32 of the Nuclear Security Regulations requires the NRF to be capable of making
an effective intervention taking into account the threat
121 Ibid s 27(1)(a)122 Ibid s 27(1)(b)123 Ibid s 27(2)124 Ibid s 27(5)(a)125 Ibid s 27(5)(b)126 Ibid s 32
50
Members of the NRF are mandated by the Nuclear Security Regulations to be ldquotrained in
the use of firearms authorized to carry firearms in Canada and qualified to use themrdquo127
However to satisfy this requirement the NRF resorts to the PWPA since the federal
regulations do not authorize the NRF to carry firearms without a licence However
under s 2(1) of the PWPA NSOs are designated as ldquoguardsrdquo with the powers of a peace
officer most significantly to carry and use firearms without having to be licensed128
Such a designation also enables the OPG to acquire and dispose of firearms
In the consultations I had with the OPG and the CNSC they advised me that NSOs
receive training equivalent to Canadian police standards and that NRF officers receive
training equivalent to federal and provincial police tactical team requirements
Another aspect of the PWPA used to secure nuclear power plants relates to powers
exercised by NSOs in ldquocontrolled areasrdquo The federal regulations do not provide the
NSOs with any power to demand identification within this area However pursuant to
the PWPA as appointed ldquoguardsrdquo the NSOs have the power to demand identity
verification in the controlled area They also have the authority to arrest anyone who
obstructs NSOs in the performance of their duties under the PWPA
In addition to using the PWPA to secure the controlled areas I have been advised by the
OPG that NSOs use powers pursuant to the PWPA to secure areas within 100 metres of a
nuclear facilityrsquos property line immediately adjacent to the controlled area These powers
are exercised under the broad language of the PWPA regarding ldquoapproaches to public
127 Ibid s 1 (on-site nuclear response force definition)128 Section 11707 of the Criminal Code exempts peace officers from licensing requirements for possessing firearms and other prohibited and restricted weapons
51
worksrdquo This is an illustration of the problem with the vagueness of this language in the
legislation As these powers are exercised on public land they could be challenged as a
potential infringement on individual rights and freedoms However I have been advised
that there have been no such incidents to date The need to ensure the security of these
facilities must be taken into the balance
NSOs must be able to monitor and control access to the controlled areas and areas close
to a nuclear power plantrsquos property line This provides for a more secure perimeter
around these facilities They need authority to challenge individuals acting in a suspicious
manner or conducting surveillance of nuclear facilities The OPG has informed me that
areas outside a nuclear facilityrsquos property line immediately adjacent to the controlled
area are still close enough to take advantage of the short distance to conduct intelligence
using high-powered surveillance equipment These nuclear power plants are not located
on isolated islands and are therefore vulnerable Both the Pickering Nuclear Generating
Station and the Darlington Nuclear Generating Station operate within major urban areas
being 30 km and 60 km east of downtown Toronto respectively I am advised that
previous events such as ldquoThe Toronto 18rdquo129 have shown that those intent on targeting
vital infrastructure such as power generating facilities often use reconnaissance and
intelligence gathering as precursor tactics
Recommendation
If the PWPA is to be repealed it is imperative that those who secure our nuclear and
power generating facilities be given the requisite specific legislative powers to do so
129 See for example ldquoLast 2 Toronto 18 accused found guiltyrdquo CBC News (23 June 2010) online cbcca lthttpwwwcbccanewscanadatorontostory20100623toronto-18-verdicthtmlgt
52
The source for these powers should be set out in the federal Nuclear Security
Regulations However if this is not a desired option the Government of Ontario must
consider specific legislation setting out the specific powers required to properly secure
these facilities and the specific location in which these powers can be exercised Such
legislation should not be passed without proper notice consultation and legislative
debate
53
SECTION 6 CONCLUSION
The PWPA was enacted in 1939 to support the war effort At the time the protection of
Ontariorsquos hydroelectric facilities from sabotage was of particular concern Since then the
PWPA has been used to provide the legal foundation for the powers exercised by the
police in providing court security and even more recently by the OPG in securing
nuclear power facilities In June 2010 the PWPA was used to provide powers to secure
intergovernmental conferences The vagueness of the PWPA permits it to be used in
situations when it is arguably not necessary and potentially abusive In my view the
PWPA has been used for purposes beyond its original intent
The time for the PWPA seems to have passed If the Government of Ontario enacts as I
have suggested specific legislation to provide for courthouse security and power
generating infrastructure security it would appear that there is no longer a need for the
PWPA I am also mindful of the existence of counter-terrorism and emergencies
legislation to deal with these situations as they arise
ldquoIn determining the boundaries of police powers caution is required to ensure the proper
balance between preventing excessive intrusions on an individualrsquos liberty and privacy
and enabling the police to do what is reasonably necessary to perform their duties in
protecting the publicrdquo130 The overly broad and vague language of the PWPA does not
strike this required balance with individual rights and freedoms
The late Justice Jackson of the United States Supreme Court stated that every
emergency power once conferred ldquolies about like a loaded weapon ready for the hand of
130 R v Clayton [2007] 2 SCR 725 at 742
54
any authority that can bring forward a plausible claim of an urgent needrdquo131 The need to
protect the public must be balanced with the requirement to preserve fundamental rights
and freedoms
Yet at the same time ldquoCanadians are entitled to demand the best public order policing
possible from their governmentrdquo132 There is no question that we live in a different world
post 911 We live in difficult times with constant threats both domestically and from
abroad The police clearly need to be given adequate powers to carry out their duties
The police use their expertise on a daily basis to assess the powers they require In
instances when they take action that exceeds their powers their actions are examined by
various mandated bodies This process I believe results in the proper balance between
police powers and individual rights and freedoms Therefore any legislation that purports
to grant special police powers must be specific and direct and developed in consultation
with stakeholders and tested through thorough debate in our transparent democratic
system
131 Korematsu v United States 323 US 214 (1944)132 Supra note 26 p 8
55
refuse to permit a person to enter a public work and can use as much force as necessary in
this endeavour
(c) Boundaries of Public Work
Section 4 provides that a statement under oath by an officer or employee of the person or
entity operating or having control of a public work regarding the boundaries of the public
work serves as conclusive evidence with respect to the boundaries
(d) Offence Power of Arrest
Section 5 provides that any person who neglects or refuses to comply with a request or
direction made by a guard or peace officer is guilty of an offence In addition a person
who enters a public work or an approach to a public work without lawful authority is
guilty of an offence A person found guilty of an offence is liable to a fine of not more
than $500 andor imprisonment of not more than two months A guard or peace officer
has the power to arrest without warrant any person who refuses to comply with a request
or direction of a guard or peace officer and who enters or attempts to enter a public work
without lawful authority
(e) Regulations
Section 6(b) provides that the Lieutenant Governor in Council may define the areas that
constitute approaches to public works while s 6(c) permits regulations to be made
regarding any matter necessary to carry out the intent and purpose of the PWPA
D Events Leading to Passage of O Reg 23310
There was no apparent reference to the possible use of the PWPA until fairly late in the
planning process for the security for the G20 Summit The Province of Ontario originally
9
attempted to obtain support for its security measures through reliance on a federal statute
the Foreign Missions and International Organizations Act (ldquoFMIOArdquo) which provides
that the RCMP can take ldquoappropriate measuresrdquo to ensure the proper functioning of an
intergovernmental conference ldquoin a manner that is reasonable in the circumstancesrdquo8
On May 7 2010 John Burke Deputy Minister of Community Safety and Correctional
Services of Ontario wrote to William Baker Deputy Minister of Public Safety Canada9
stating that security would be enhanced by the existence of an agreement pursuant to s
101(4) of the FMIOA which provides that the Federal Minister of Public Safety may
enter into arrangements with the government of a province concerning the responsibilities
of members of the RCMP and provincial municipal police forces with respect to
ensuring security for the proper functioning of a conference
On June 11 2010 the Provincial Deputy Minister received a reply10 from the Federal
Deputy Minister indicating that such an agreement would not be required for the
Summits since ldquothe current suite of powers and authorities that peace officers possess at
common law or by virtue of any other federal or provincial Act or regulation were
sufficient for the G8 and G20 Summitsrdquo
The Federal Deputy Minister was clear that in his view the police had sufficient authority
at common law and in statute to secure these conferences Similarly the OPP were of the
view that it was not necessary for the police forces to have any additional police powers
8 SC 1991 c 41 s 101(2) Attached as Appendix 5 is a copy of selected sections of the FMIOA 9 Attached as Appendix 6 is a copy of the May 7 2010 letter10 Attached as Appendix 7 is a copy of the letter received on June 11 2010
10
other than those already conferred by virtue of common law and statute (excluding the
PWPA) in order to secure the interdiction zones for the Summits
On May 12 2010 Chief William Blair of the TPS wrote to the Honourable Rick
Bartolucci Minister of Community Safety and Correctional Services11 stating that a
ldquocornerstonerdquo of the TPS security plan for the G20 Summit would be the establishment of
a security perimeter in an area around the Metro Toronto Convention Centre The
purpose of this security perimeter as explained in the letter was to ldquoensure the safety and
security of those attending the Summit the Summit site itself and people and property
within the area close to the Summit siterdquo Chief Blair indicated that the TPS would rely
upon the authority granted to it pursuant to the common law and if certain conditions are
met the FMIOA12 to establish and control the security perimeter However he believed
that the provisions of the PWPA ldquowould also offer legal support for the extraordinary
security measuresrdquo he believed would be necessary Chief Blair therefore requested ldquothe
Lieutenant Governor in Council to designate the area of or highways within the intended
security perimeter as a public work for the period from June 21 2010 through the end of
the Summit on June 27 2010rdquo A detailed description of the area requested to be
designated as a public work was provided to Minister Bartolucci as well as an aerial
photograph of the area
I am not aware that any organization publicly questioned the inherent police power to
erect fences defining the interdiction zone The Canadian Civil Liberties Association
11 See Appendix 312 This probably is in reference to s 101(4) of the FMIOA which provides the authority for the Minister of Public Safety and Emergency Preparedness to enter into arrangements with the government of a province concerning the responsibilities of members of the RCMP and members of the provincial and municipal police forces with respect to ensuring the security for the proper functioning of an intergovernmental conference
11
(ldquoCCLArdquo) published a document entitled ldquoProtecting civil liberties and human rights at
the G20 statement of concernsrdquo on May 21 201013 In this document the CCLA
expressed concern with the size of the security perimeter ldquoParticularly where there is a
primary fence to ensure safety around conference venues and delegate hotels any further
restrictions on mobility or protest must be fully and carefully justifiedrdquo14 However the
CCLA supported ldquothe overall goal of ensuring that the G20 is conducted in a manner that
is safe for delegates protesters and Toronto residents in generalrdquo15 and noted the
RCMPrsquos authority under the FMIOA There was no doubt expressed by the CCLA
concerning the power of police to erect security fences
By letter dated June 15 201016 Minister Bartolucci wrote to Chief Blair acknowledging
the request and stating in part
I agree that there are various sources of legal authority to support the security perimeter I also recognize the desirability of having additional sources of legal authority to ensure clarity regarding the ability of the Toronto Police Service to take the steps that it will be taking Accordingly I am pleased to inform you that a regulation has been made under the PWPA in response to your request
The Minister informed Chief Blair that O Reg 23310 had been filed with the Registrar
of Regulations and would come into force on June 21 2010 and would be revoked as of
June 28 2010 The area requested by Chief Blair to be designated as a ldquopublic workrdquo
was so designated in O Reg 23310
13 Canadian Civil Liberties Association Protecting civil liberties and human rights at the G20 statement of concerns May 21 2010 online Canadian Civil Liberties Association lthttpcclaorgwordpresswp-contentuploads201005G20-CCLA-Statement-of-Concernspdfgt14 Ibid p 415 Ibid p 316 Attached as Appendix 8 is a copy of the June 15 2010 letter
12
Four days earlier on June 11 2010 Mike McDonell the Assistant Commissioner of the
RCMP sent a letter to Chief Blair17 containing a thorough review of the statutory sources
of the RCMPrsquos duties and powers to secure intergovernmental conferences Assistant
Commissioner McDonell outlined the police authority to fully secure the G8 and G20
Summits
More specifically in relation to the Summits the RCMP will be taking measures to fulfill duties related to the protection of Internationally Protected Persons (IPPrsquos) that befall police in general and the RCMP in specific The official visit of the head of state or high ranking dignitary of a foreign country is an event that frequently engenders a real or apprehended threat to the preservation of peace which demands the adoption of proper and reasonable security measures in and by the host country
Furthermore Canada is a signatory of the United Nations Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons Including Diplomatic Agents In that regard Canada has specifically adopted laws requiring peace officers to protect IPPs as defined in section 2 of the Criminal Code in accordance with its international obligationshellip
Legal authorities also permit the RCMP to collaborate with other police forces such as the OPP in the fulfillment of its duties including in relation to securing the perimeter Such collaboration is essential in light of concurrent mandates of policing partners particularly in relation to the legal duties to preserve the peace and protect life and property
E O Reg 23310
On June 2 2010 Cabinetrsquos Legislation and Regulations Committee passed O Reg
23310 It was signed by the Lieutenant Governor on June 3 2010 and published on June
16 2010 on e-Laws a website maintained by the Government of Ontario not frequently
accessed by the public This website provides access to official copies of Ontariorsquos
statutes and regulations O Reg 23310 came into force on June 21 2010 and was
17 Attached as Appendix 9 is a copy of the June 11 2010 letter
13
revoked on June 28 2010 It was not published in The Ontario Gazette18 until July 3
2010 after it had already been revoked Section 23(2) of Ontariorsquos Legislation Act
200619 provides that a regulation is not effective against a person before the earliest of
when the person has actual notice of it the last instant on the day on which it is published
on the e-Laws website or the last instant of the day on which it is published in the print
version of The Ontario Gazette As a result though the technical requirements for
providing notice of O Reg 23310 were met I have concerns whether adequate notice
was given to the public especially in light of the fact that the regulation was not
published in The Ontario Gazette until it had already been revoked
The regulation set out the area where the security fence was to be erected and designated
that area as a ldquopublic workrdquo which then called into play all the powers provided by the
PWPA
ONTARIO REGULATION 23310
made under the
PUBLIC WORKS PROTECTION ACT
Made June 2 2010Filed June 14 2010
Published on e-Laws June 16 2010Printed in The Ontario Gazette July 3 2010
DESIGNATION OF PUBLIC WORKS
Designation 1 The following are designated as public works for the purposes of the Act 1 Everything described in clause (a) of the definition of ldquopublic workrdquo in section
1 of the Act that is located in the area described in Schedule 1 including without limitation and for greater certainty every sidewalk in that area
2 The places described in paragraphs 1 2 and 3 of Schedule 2
18 The Ontario Gazette contains Ontariorsquos legal notices and regulations19 SO 2006 c 21 Sched F
14
Revocation 2 This Regulation is revoked on June 28 2010
Commencement 3 This Regulation comes into force on the later of June 21 2010 and the day
it is filed SCHEDULE 1
AREA REFERRED TO IN PARAGRAPH 1 OF SECTION 1
The area in the City of Toronto lying within a line drawn as follows
Beginning at the curb at the southeast corner of Blue Jays Way and Front Street West then north to the centre of Front Street West then east along the centre of Front Street West to the east curb of Windsor Street then north along the east curb of Windsor Street to the centre of Wellington Street then east along the centre of Wellington Street to the centre of Bay Street then south along the centre of Bay Street to a point directly opposite the north wall of Union Station then west along the exterior of the north wall of Union Station to the centre of York Street then south along the centre of York Street continuing east of the abutments under the railway overpass and continuing south along the centre of York Street to the centre of Bremner Boulevard then west along the centre of Bremner Boulevard to the east curb of Lower Simcoe Street then south along the east curb of Lower Simcoe Street to the north curb of Lake Shore Boulevard West then west along the north curb of Lake Shore Boulevard West to the south end of the walkway that is located immediately west of the John Street Pumping Station and runs between Lake Shore Boulevard West and the bus parking lot of the Rogers Centre then north along the west edge of that walkway to the bus parking lot of the Rogers Centre then west along the south edge of the bus parking lot of the Rogers Centre to the west edge of the driveway running between the parking lot and Bremner Boulevard then north along the west edge of that driveway to the north curb of Bremner Boulevard then west along the north curb of Bremner Boulevard to the east curb of Navy Wharf Court then north along the east curb of Navy Wharf Court to the southwest point of the building known as 73 Navy Wharf Court then east along the exterior of the south wall of that building then north along the exterior of the east wall of that building to the curb of Blue Jays Way then north along the east curb of Blue Jays Way to the curb at the southeast corner of Blue Jays Way and Front Street West
SCHEDULE 2DESIGNATED PLACES REFERRED TO IN PARAGRAPH 2 OF SECTION 1
1 The area within the area described in Schedule 1 that is within five metres of a line drawn as follows Beginning at the south end of the walkway that is located immediately west of the John Street Pumping Station and runs between Lake Shore Boulevard West and the bus parking lot of the Rogers Centre then north along the west edge of that walkway to the bus parking lot of the Rogers Centre then west along the south edge of the bus parking lot of the Rogers Centre to the west edge of the driveway running between the parking lot and Bremner
15
Boulevard then north along the west edge of that driveway and ending at Bremner Boulevard
2 The area within the area described in Schedule 1 that is within five metres of a line drawn as follows
Beginning at the southwest point of the building known as 73 Navy Wharf Court then east along the exterior of the south wall of that building then north along the exterior of the east wall of that building and ending at the curb of Blue Jays Way
3 The below-grade driveway located between Union Station and Front Street West and running between Bay Street and York Street in the City of Toronto
F Information Given to Public Regarding Security Protocol
Attempts were made to inform the public about the security measures that would be in
place leading up to and throughout the G20 The City of Toronto in consultation with
the ISU produced an information article20 and flyers21 No mention is made in the article
or flyers of the PWPA or O Reg 23310 and the powers given to the police The City of
Toronto also prepared an advertisement which appeared in local newspapers22 The
original version of the advertisement made no reference to the fact that people would be
subject to a search when attempting to access the security perimeter although reference
was made to the requirement to show identification and to have a valid purpose for
entering the restricted area A later version of the advertisement included additional text
advising that anyone requesting access to the security perimeter may be subject to a
search However just as with the article and flyers no specific mention was made of the
PWPA or O Reg 23310
20 A million copies of the newsletter Our Toronto which contained an article entitled ldquoWhat to expect during the G20 ndash June 26 amp 27 2010rdquo were delivered to homes in the City of Toronto21 Approximately 10000 flyers were sent to homes and businesses within the affected area The flyercontained general information about security and the anticipated effects on traffic22 The advertisement appeared in the Toronto Star Toronto Sun and Metroland community papers
16
In the days leading up to and throughout the G20 Summit there was apparently a
misunderstanding on the part of the police regarding a purported ldquofive-metre rulerdquo This
confusion likely emanated from the ldquofive-metresrdquo referenced in Schedule 2 of O Reg
23310 However the purpose of Schedule 2 was to designate as ldquopublic work(s)rdquo three
specific private property locations on which the security fence was to be erected that were
not ldquopublic worksrdquo The remainder of the fence was on public sidewalks and streets
which are ldquopublic worksrdquo To ensure that the fence was located on a ldquopublic workrdquo the
drafters designated the area within five metres of the security fence in these three
locations as a ldquopublic workrdquo23 Unfortunately the wording of Schedule 2 was very
cumbersome and the relationship between the area defined in Schedule 1 and the five-
metre reference in Schedule 2 was difficult to understand
Because of this confusion unfortunately the message was conveyed that the regulation
provided for a five-metres zone outside the entire security fence and that therefore the
PWPA applied to this entire area24 The media reported during the G20 summit that the
police had ldquosweepingrdquo powers pursuant to the PWPA within five-metres outside of the
exterior security fence25 O Reg 23310 did not provide the police such authority
23 Attached as Appendix 10 is a copy of a map showing the three specific areas designated in Schedule 2 of O Reg 2331024 Jennifer Yang ldquoJust being near the G20 security zone can get you arrestedrdquo Toronto Star (25 June 2010) online thestarcom lthttpwwwthestarcomnewsgtatorontog20summitarticle828498--just-being-near-the-g20-security-zone-can-get-you-arrestedgt25 David Rider et al ldquoDalton McGuinty Bill Blair defend quiet boost in arrest powersrdquo Toronto Star (26 June 2010) online thestarcom lthttpwwwthestarcomnewsgtatorontog20summitarticle828974--dalton-mcguinty-bill-blair-defend-quiet-boost-in-arrest-powersgt
17
SECTION 3 COMMENTARY
A Public Policy Considerations
There are some overarching public policy considerations which affect the issues I have
been asked to address in the Terms of Reference
As stated earlier the legislation was the product of emergency World War II concerns
related to the possibility of enemy sabotage of important infrastructures The legislative
debates in September of 1939 were particularly concerned with the provincersquos
hydroelectric facilities However notwithstanding these apparently specific concerns
when drafted the definition of ldquopublic workrdquo is extraordinarily broad and from a policy
standpoint raises questions of overbreadth especially given the ability to designate
almost anything a public work In a mere definition section s 1 of the legislation allows
the Lieutenant Governor in Council to designate ldquoany other building place or workrdquo as a
ldquopublic workrdquo However taken to its logical conclusion an entire city or more could be
designated as a ldquopublic workrdquo The definition of ldquopublic workrdquo includes ldquoany provincial
and any municipal public buildingrdquo but ldquopublic buildingrdquo is not further defined thereby
creating an element of uncertainty as to the specific provincial and municipal buildings
captured by this definition While perhaps extreme measures in times of war require
flexibility in all other circumstances legislation of this nature requires limitations and a
more specialized approach
The expression ldquoprivate armyrdquo was used in the Ontario legislative debate in 1939
Theoretically at least private armies could be created through the use of the ldquoguardrdquo
appointing authority by the many individuals who are authorized to appoint guards
pursuant to the PWPA This authority was apparently in response to the Federal
18
Governmentrsquos refusal to assume through the Defence Department the responsibility of
guarding utilities and industries essential to the war effort While such a result might not
have been contemplated in a parliamentary democracy it is clearly unwise to leave such
a possibility open
Section 3 of the PWPA provides in part that a guard or a peace officer
(a) may require any person entering or attempting to enter any public work or any approach thereto to furnish his or her name and addresshellipand to state the purpose for which he or she desires to enter the public work in writing or otherwise
The primary problem I see with this section is the vagueness of the term ldquoapproach
theretordquo An approach could begin at a considerable distance from the public work
Section 6(b) also provides for the making of regulations ldquodefining the areas that
constitute approaches to public works either generally or with regard to a particular
public workrdquo
In addition s 3(b) of the PWPA provides that a guard or peace officer ldquomay search
without warrant any person entering or attempting to enter a public workrdquo This section
does not permit any person to abandon any attempt to enter a public work in order to
avoid being subjected to a warrantless search Such conduct is adopted by persons who
decide not to enter a secured courthouse in order to avoid a warrantless search
Section 4 provides that for the purposes of the PWPA the statement under oath made by
persons engaged in the operation of a public work ldquoas to the boundaries of the public
work is conclusive evidence thereofrdquo Section 4 should be considered with s 5(1) which
provides that ldquoevery person found upon a public work or any approach thereto without
lawful authority the proof whereof lies on him or her is guilty of an offencehellip(emphasis
19
added)rdquo The provision in s 4 that ldquothe statement under oathhellipis conclusive evidence
thereofrdquo appears to remove from a courtrsquos consideration what could be a legitimate
dispute as to the boundaries of a public work or the approach thereto Furthermore the
apparent reversal of the onus of proof regarding lawful authority to be found in a public
work or an approach found in s 5 is also troublesome from a policy and legal point of
view
Accordingly if utilized to the extreme many government officials could appoint many
private armies to restrict access to many (in fact any) public places where the mere
statement under oath by the private guard of the boundaries of the areas under restricted
access is conclusive proof thereof Such potential for abuse is beyond troubling to say
the least
B Review of other Public Reports
As is evident from the foregoing discussion many issues arise regarding the operation of
the PWPA in todayrsquos context These considerations and others also formed the basis of
concerns raised in public reports which I was asked to review
1 Reports of the Canadian Civil Liberties Association
The CCLA preliminary G20 report26 dealt with most of the police related events that
occurred in Toronto during the G20 conference during the weekend of June 26th and 27th
2010 I will only make reference to a few portions of the report that deal with the Terms
of Reference
26 Canadian Civil Liberties Association A Breach of the Peace ndash A Preliminary Report of Observations During the 2010 G20 Summit June 29 2010 online Canadian Civil Liberties Association lthttpcclaorgwordpresswp-contentuploads201006CCLA-Report-A-Breach-of-the-Peace-Preliminary-report-updated-July-8pdfgt
20
The report of the CCLA called for the repeal or significant amendment to the PWPA ldquoto
meet basic constitutional standardsrdquo27 The CCLA ldquosuggests that the broad police powers
granted under the Act are inconsistent with current Charter requirementsrdquo28
I agree with the observation of the CCLA that the provisions of the PWPA led to a ldquolack
of clarity as to the scope of the search and seizure powersrdquo29 which created many
difficulties and conflicts that probably could have been avoided I would also certainly
agree with a conclusory comment in this preliminary report that ldquoit is the duty of police
officers to act with fairness and equanimity toward all citizens in accordance with the law
of the country The presumption of innocence and the protection against arbitrary arrests
and detention are at the core of a commitment to justicerdquo30
The CCLA in partnership with the National Union of Public Employees organized
public hearings for two days in Toronto and one day in Montreal in November of 2010
which they referred to as a Citizens Inquiry The Citizens Inquiry heard from 63 members
of the public who had witnessed policing incidents or had been detained Several lawyers
and academics also participated in the hearing and offered commentary on the events of
the G20 from a legal or policing perspective including issues related to the PWPA A
report of the hearings titled ldquoG20 Toronto Breach of the Peace Public Hearingsrdquo was
released on February 28 2011 which also referred to the PWPA31
27 Ibid p 2228 Ibid p 929 Ibid p 1230 Ibid p 2131 Canadian Civil Liberties Association and the National Union of Public and General Employees G20 Toronto Breach of the Peace Public Hearings February 2011 online Canadian Civil Liberties Association lthttpcclaorgwordpresswp-contentuploads201102Breach-of-the-Peace-Final-Reportpdfgt
21
2 The Ontario Ombudsman Report
The Ontario Ombudsman commenced an investigation after receiving complaints relating
to a variety of issues concerning the G20 The Marin Report recognized that ldquotypically
international summits attract protests and protests can turn violent and even deadlyrdquo32
The report therefore does not quarrel with the requirement that a high level of security is
required for such events
The report in my view accurately describes the PWPA as ldquounique in Canada in terms of
the breadth of its reach and the powers it confershellipno other Canadian statute defining
lsquopublic worksrsquo contains provisions similar to those found in Ontariorsquos Actrdquo33
32 Ontario Ombudsman report Investigation into The Ministry of Community Safety and Correctional Servicesrsquo Conduct in Relation to Ontario Regulation 23310 under the Public Works Protection Act ldquoCaught in the Actrdquo by Andreacute Marin (Toronto Ombudsman of Ontario December 2010) online Ombudsman of Ontario lthttpwwwombudsmanoncamedia157555g20final1-enpdfgt (ldquoMarin Reportrdquo) at para 733 Ibid at para 97
22
SECTION 4 POWERS OF THE POLICE
Pursuant to the Terms of Reference I have been asked to consider for future purposes
whether the powers given to peace officers and guards under the PWPA are necessary to
protect public works secure intergovernmental conferences or for any other purposes
To answer that question it is necessary to assess whether the current common law and
statutory regime provide the police with sufficient powers to perform these vital services
A Common Law Powers and Powers Pursuant to Police Services Acts
The police have extensive common law powers that can be used in protecting and
securing intergovernmental conferences and in protecting public works It is necessary to
examine those powers in order to assess whether and what if any additional powers are
needed such as those provided by the PWPA
Of particular assistance in this regard is R v Knowlton34 where the Supreme Court of
Canada considered whether the powers possessed by peace officers at common law and
statute in securing an area for the protection of a foreign dignitary were lawful The
Supreme Court of Canada held that in order for the exercise of peace officer powers to be
lawful the powers must satisfy the two step test set out in R v Waterfield35 First the
power must be in furtherance of a lawful duty Traditional common law peace officer
duties include the preservation of the peace and the prevention of crime These common
law police duties amongst others are now statutorily enshrined in s 42(1) of Ontariorsquos
Police Services Act (and other provincial police services acts)36 The second part of the
test requires an evaluation of whether the conduct of the peace officer was ldquojustifiedrdquo To
34 [1974] SCR 443 [ldquoKnowltonrdquo]35 See for example R v Dedman [1985] 2 SCR 236 RSO 1990 c P15
23
do so one applies the standard of what is reasonably necessary in light of the totality of
the circumstances In evaluating whether the conduct of the peace officer was justified it
is important to consider ldquothe duty being performed the extent to which some interference
with individual liberty is necessary in the performance of that duty the importance of the
performance of the duty to the public good the nature of the liberty being interfered with
and the nature and extent of the interferencerdquo37
In Knowlton police in Edmonton cordoned off an area as part of the security
arrangements for the visit of Premier Kosygin of the USSR Premier Kosygin had been
assaulted in Ottawa a few days prior to his visit to Edmonton Knowlton entered the
secured area questioning the power of the peace officer to prevent his entry He was
arrested without a warrant and charged with obstructing a peace officer in the execution
of his duties Knowlton argued that the peace officer did not have the power to prevent
his entry and was not acting in the execution of his duty
The Supreme Court of Canada emphasized the heightened importance of security when
there are visiting foreign dignitaries38
It is notorious and of common knowledge that the official visit of the head of state or high rank dignitary of a foreign country friendly as either may be is an event that frequently engenders a real or apprehended threat to the preservation of peace and that calls therefore for the adoption of proper and reasonable security measures in and by the host countryhellipThe restriction of the right of free access of the public to public streetshellipwas one of the steps--not an unusual one--which police authorities considered and adopted as necessary for the attainment of the purpose aforesaid In my opinion such conduct of the police was clearly falling within the general scope of the duties imposed upon them
37 R v Mann [2004] 3 SCR 59 at 7938 Supra note 34 at 447-448
24
In addressing the first part of the Waterfield test the Court referenced provisions of the
Alberta Police Act and the Criminal Code and concluded that the conduct of the peace
officers fell within the general scope of the duties imposed upon them for example
preservation of the peace and prevention of crime39
According to the principles which for the preservation of peace and prevention of crime underlie the provisions of s 30 amongst others of the Criminal Code these official authorities were not only entitled but in duty bound as peace officers to prevent a renewal of a like criminal assault on the person of Premier Kosygin during his official visit in Canada In this respect they had a specific and binding obligation to take proper and reasonable steps The restriction of the right of free access of the public to public streets at the strategic point mentioned above was one of the steps--not an unusual one--which police authorities considered and adopted as necessary for the attainment of the purpose aforesaid In my opinion such conduct of the police was clearly falling within the general scope of the duties imposed upon them
In analyzing the second step of the Waterfield test the Court concluded that there was no
evidence indicating the police officers resorted to an unjustifiable use of the powers
associated with the duties imposed on them
The Court in Knowlton recognized broad police powers to cordon off areas as part of the
security arrangements involving internationally protected persons In addition the Court
found that the warrantless arrest in that case was not an unjustifiable or unreasonable use
of powers associated with the police duties to preserve the peace order public safety and
to enforce the law and prevent crime Finally the Court found that peace officers were
duty bound ldquoto prevent a renewal of a like criminal assault on the person of Premier
Kosygin during his official visit in Canadardquo40 Furthermore it stated the closing of public
39 Ibid 40 Ibid at 447
25
streets ldquowas one of the steps -- not an unusual one -- which police authorities considered
and adopted as necessaryrdquo41
The Knowlton decision clearly acknowledged that the police had the duty and authority to
establish and enforce a secured area to protect a foreign dignitary In order to carry out
these duties the police may do what is reasonably necessary in light of the totality of the
circumstances
Though Knowlton was decided prior to the enactment of the Canadian Charter of Rights
and Freedoms (the ldquoCharterrdquo) this does not in my view affect the clear statement by the
Supreme Court of Canada regarding the duty of the police under the common law and the
Alberta Police Act to provide this security While the facts of Knowlton were quite
compelling in relation to the obvious need to provide adequate security for Premier
Kosygin the decision is equally important authority regarding the general responsibilities
of the police at common law and statute in relation to the preservation of the peace
B Other Statutory Powers
1 Criminal Code
Some specific powers are provided to peace officers pursuant to the Criminal Code42
Section 31 gives peace officers the power to arrest an individual for breach of the peace
Peace officers can arrest those committing the breach of the peace or those who on
reasonable grounds heshe believe are about to join in or renew the breach of the peace
Peace officers also have powers at their disposal under ss 63-69 of the Criminal Code to
deal with the offences of unlawful assembly and riots
41 Ibid at 447-448 42 RSC 1985 c C-46
26
2 Trespass to Property Act
The Ontario Trespass to Property Act43 is a potential source of police power to arrest
without warrant those who are unlawfully on certain premises or who were recently
unlawfully on the premises and refuse to give their name and address44 This statute
deals with illegal entry into both private and public property by creating the offence of
trespass for those who without the express permission of the occupier enter on to
premises or engage in an activity on the premises when it is prohibited by the statute45
Though this statute is primarily used by private property owners to keep unwanted people
off of their property it has also been invoked by the Speaker of the House46 and by the
City of Toronto47 It must be noted however that using the Trespass to Property Act in
relation to removing individuals from ldquopublicrdquo places may raise Charter issues48
3 Foreign Missions and International Organizations Act
The RCMP as peace officers have the general duty to preserve the peace and prevent
crime and offences as set out in s 18 of the Royal Canadian Mounted Police Act49
Additional duties found in s 17 of the Royal Canadian Mounted Police Regulations
198850 include the protection of ldquointernationally protected personsrdquo as defined in s 2 of
the Criminal Code Internationally protected persons include heads of state and their
43 RSO 1990 c T2144 Ibid ss 9(1) 1045 Ibid s 2(1)46R v Behrens [2004] OJ No 5135 (CJ) The Court held that the issue of the trespass notices fell under the Speakerrsquos parliamentary privilege and were not reviewable even on the basis of a Charter argument47R v Semple [2004] OJ No 2137 (CJ)48 In R v Semple the defendants were charged under the Ontario Trespass to Property Act for entering the grounds of Toronto City Hall after being banned from doing so In the end the Court held that the defendantsrsquo peaceful entry onto the grounds was an expression as per s 2(b) of the Charter Torontorsquos notice under the Act infringed on this freedom and in these circumstances it could not be justified under s 1 of the Charter 49 RSC 1985 c R-1050 SOR88-361
27
family members The RCMPrsquos duty to protect internationally protected persons is also
found in s 6(1) of the Security Offences Act51
In addition Canada is a signatory of the United Nations Convention on the Prevention
and Punishment of Crimes against Internationally Protected Persons including
Diplomatic Agents52 This Convention provides that the Government of Canada must
protect visiting heads of state or government foreign ministers representatives or
officials of a state or any official or other agent of an international organization of an
intergovernmental character and the family members that accompany him or her The
RCMP has the responsibility to carry out these security measures
Pursuant to s 101(1) of the FMIOA ldquoThe Royal Canadian Mounted Police has the
primary responsibility to ensure the security for the proper functioning of any
intergovernmental conference in which two or more states participate that is attended by
persons granted privileges and immunities under this Act and to which an order made or
continued under this Act appliesrdquo
The powers to carry out this mandate are found in s 101(2) of the FMIOA ldquothe Royal
Canadian Mounted Police may take appropriate measures including controlling limiting
or prohibiting access to any area to the extent and in a manner that is reasonable in the
circumstancesrdquo It is noteworthy that the FMIOA has legislated the same powers
provided to the police under common law and statute
In order to trigger the RCMP powers described in s 101 the Governor in Council on the
51 RSC 1985 c S-752 UNGA Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons including Diplomatic Agents 20 February 1977 UN Doc I-15410
28
recommendation of the Minister of Foreign Affairs and pursuant to s 5 of the FMIOA
made the G8 Summit Privileges and Immunities Order 201053 on December 10 2009
This order was repealed and a subsequent order54 was made on January 13 2010 A
similar order55 for the G20 Summit was made on March 11 201056
Therefore during the G20 the RCMP had the specific statutory power to limit or
prohibit access to any area and to any extent as long as the measures were appropriate
and done in a manner that was reasonable in the circumstances ldquoThe RCMP may secure
the perimeter of the security zone on land with fencing and restrict access to this zone
through the use of checkpoints and other measuresrdquo57
Though not invoked during the G20 s 101(4) of the FMIOA provides that arrangements
can be entered into with a province concerning the responsibilities of members of the
RCMP and members of the provincial and municipal police forces with respect to
ensuring the security for the proper functioning of an intergovernmental conference No
information was provided to me as to why such an arrangement was not entered into for
the G20
These intergovernmental security provisions of the FMIOA were enacted just prior to the
G8 being held in Kananaskis Alberta in 2002 In light of violent protests at international
events and the 911 terrorist attacks in the United States the Federal Government
53 SOR2009-33654 SOR2010-1355 SOR2010-6256 Supra note 17 ldquoUpon such an Order being made the RCMP in co-operation and collaboration with other police forces becomes impressed with the primary responsibility of ensuring not only the protection of the IPPs but also ensuring lsquosecurity for the proper functioningrsquo of the intergovernmental conference To that end the FMIOA provides that the lsquoappropriate measures including controlling limiting or prohibiting access to any area to the extent and in a manner that is reasonable in the circumstancesrsquo may be takenrdquo57 Ibid
29
considered it timely ldquoto clarify in statute the present common law authority for police to
provide security and protection for high profile international eventsrdquo58 At such events it
was intended that ldquothe RCMP is the lead to make sure that security is providedrdquo59
Given that it was clearly the intention of the Federal Government to have the RCMP as
the lead police force at these international events consideration should be given to
expand the use of the FMIOA to cover all large scale international events such as the
Olympics the Pan American Games and international trade fairs as these events are
routinely attended by heads of state and senior government officials Most recently
Vancouver held the 2010 Olympic and Paralympic Winter Games60 Though federal and
municipal legislation were passed to assist in securing the Games expansion and
application of the FMIOA would have been a better approach The RCMP as the national
police force ought to be in charge pursuant to their authority under the FMIOA
4 Emergency Legislation
Through my consultations with the parties listed in Appendix 2 I heard that while we are
not in a time of war as in 1939 when the PWPA was enacted we live in an age of
international and local terrorism threats Our democratic society must be vigilant in
58 Canada House of Commons Debates 37th Parl 1st Sess No 93 (5 October 2001) at 100059 Canada House of Commons Standing Committee on Public Safety and National Security 40th Parl 3rd
Sess Evidence (25 October 2010)60 In anticipation of this event the Governor General in Council on the recommendation of the Minister of Transport pursuant to the Aeronautics Act (RSC 1985 c A-2) and the Canadian Air Transport Security Authority Act (SC 2002 c 9 s 2) passed the Vancouver 2010 Aviation Security Regulations (SOR2009-298) The purpose of the regulations was to enhance aviation security during the Games The Regulation provided for extra security and extra authorized means to conduct screenings In addition the Vancouver City Council passed the very lengthy By-law No 9962 known as the ldquoVancouver 2010 Olympic and Paralympic Winter Games By-Lawrdquo Specific security measures to be employed at a city live site (described thoroughly in a Schedule to the By-Law) that were enabled by this By-Law included The installation and monitoring of airport style and other security measures including magnetometers and X-ray machines the installation and monitoring of closed circuit television cameras the searching of any person who wished to enter on to a city live site and any bag luggage or other container carried by such person and the prohibiting of access to or removal from a city live site any person who refused to submit to a search
30
maintaining a proper level of security while recognizing that democratic values and
security issues can conflict where public order is at issue It is important to highlight that
provincial legislation exists dealing with both terrorism threats and emergency situations
I have been informed that federal and provincial counter-terrorism plans exist that
address preventing and responding to acts of terrorism
The Police Services Act regulations mandate police forces to establish procedures
consistent with federal and provincial counter-terrorism plans61 and to have policies with
respect to counter-terrorism62 In addition the Emergency Management and Civil
Protection Act allows for orders to be made in situations specifically designated an
ldquoemergencyrdquo63 by the Lieutenant Governor in Council or the Premier that regulate or
prohibit travel and movement to from or within any specified area64 Therefore the
PWPA is not needed to deal with these emergency situations as specific more recent
emergency legislation is in place for that very purpose
C Gaps in Canadian Police Powers
The Ministry of Community Safety and Correctional Services provided me with an
interesting article published in 2010 entitled ldquoThe Gap in Canadian Police Powers
61 Adequacy and Effectiveness of Police Services O Reg 399 s 2862 Ibid s 2963 Section 1 of the Emergency Management and Civil Protection Act defines an ldquoemergencyrdquo as ldquoemergencyrdquo means a situation or an impending situation that constitutes a danger of major proportions that could result in serious harm to persons or substantial damage to property and that is caused by the forces of nature a disease or other health risk an accident or an act whether intentional or otherwise (ldquosituation drsquourgencerdquo)64 RSO 1990 c E9 s 702(4)
31
Canada needs lsquoPublic Order Policingrsquo Legislationrdquo and co-authored by Wesley Pue and
Robert Diab65
This article was prompted by the debate over the cost nature and extent of security to be
employed at the Vancouver 2010 Winter Olympics The authors criticized the fact that
policing authorities in Canada ldquolack specific statutory authorization to take measures
commonly thought necessary to their missionrdquo66 These measures included security
fences in public areas designated protest areas restricted access to public space police
surveillance and searches without cause
The authors recognize that such powers may be necessary but note that ldquono legislature
has ever expressly conferred such powers on policing authorities outside the context of
international intergovernmental conferences Nor does the common law accord such
powers to state officials on its ownrdquo67 I respectfully disagree with this latter statement
It is my view the police have powers pursuant to the common law and statute as I have
discussed in the preceding section
The authors referred to R v Knowlton68 which I have previously discussed While the
authors give Knowlton a very narrow interpretation stating that ldquoits binding principle is a
good deal narrower than the words taken out of context might suggestrdquo69 I however am
of the view that the decision supports the proposition that police have a broad range of
65 Wesley Pue and Robert Diab ldquoThe Gap In Canadian Police Powers Canada Needs lsquoPublic Order Policingrsquo Legislationrdquo (2010) 28 Windsor Rev Legal Soc Issues 87 Wesley Pue is a professor of legal history at the University of British Columbia and Robert Diab is a PhD candidate at the UBC Faculty of Law66 Ibid p 8867 Ibid68 Supra note 3469 Supra note 65 p 92
32
responsibilities with deep historical roots in the common law and codified in statute a
position shared by the Federal Government when it introduced amendments to the
FMIOA The actions of the police in Knowlton were necessarily incidental to their
common law police duties and powers
The authors conclude that this ldquoauthority of police to create zones of exclusion either as
an incident of the general and ancient duties of constableshelliphas never been established in
the courtsrdquo70 I am of the view however that the role of the police in establishing
security zones relating to a crime a serious accident or other emergency is a routine and
well-accepted use of police powers pursuant to their common law and statutory duties I
am not suggesting that this common law authority permits the police to establish security
zones ldquofor the proper functioning of any intergovernmental conference in which two or
more states participaterdquo71 larger than necessary to fulfill their purpose The FMIOA as
amended in 2002 provides the RCMP with ldquoprimary responsibility to ensure the security
for the proper functioning of the intergovernmental conferencerdquo72 It is interesting
however that when the Federal Government was enacting this specific authority the
legislative debates indicated that the government was merely clarifying ldquoin statute the
present common law authority for police to provide security and protection for high
profile international eventsrdquo73
Security perimeters are routinely erected by police in the context of the commission of a
crime motor vehicle and other accidents as well as the Santa Claus parade and other
70 Ibid p 9671 Supra note 8 s 101(1)72 Ibid73 Supra note 58
33
parades It would in my view be quite impractical and unnecessary to legislate an
extensive code of police powers given their common law and statutory responsibilities to
generally maintain public order It is not advisable in my opinion to be prescriptive in
any way regarding what actions the police can take since they must assess what the
situation warrants while at the same time considering individual rights and freedoms
The details of any police response to an emergency must be tailored to the exigencies
related to the situation
The police clearly have common law and statutory authority to conduct warrantless
searches in specific situations (ldquoin exigent circumstancesrdquo)74 However when
warrantless searches must be carried out on a regular routine basis the police are acting
more like full time security guards and there should be specific statutory authority
provided to give such powers
I certainly accept the general proposition the authors assert that the mobility rights of
citizens should not be unreasonably or unfairly dealt with However one only need be
aware of the massive amount of construction taking place on the streets of Toronto as this
Report is being written to appreciate that it is not always reasonable to expect that ldquothe
rights of businesses homeowners and ordinary citizens to go about their routine
activities without interruptionrdquo75 will go unhindered While generally desirable it cannot
be legally guaranteed At the same time the authors do concede that ldquoimportant as they
74 Supra note 42 s 4871175 Supra note 65 p 89
34
are the rights of assembly movement and protest are not unqualified They can ndash and
should ndash be balanced against other important public needsrdquo76
In my view public policing at times requires innovation as it often benefits from
creative problem solving If police abuse their common law powers related to ldquopublic
order policingrdquo they are accountable to a multiplicity of authorities and the rule of law
most particularly the Charter The legal rights outlined in the Charter such as ldquothe
principles of fundamental justicerdquo77 security ldquoagainst unreasonable search and seizurerdquo78
and ldquothe right not to be arbitrarily detained or imprisonedrdquo79 are described very
generally However they were chosen deliberately as it was recognized that in each case
there is an inherent tension between imposing security measures and fundamental rights
and freedoms Determining which is paramount will be based on the facts of each case
76 Ibid p 9177 Canadian Charter of Rights and Freedoms s 7 Part I of the Constitution Act 1982 being Schedule B to the Canada Act 1982 (UK) 1982 c 1178 Ibid s 879 Ibid s 9
35
SECTION 5 LEGAL ANALYSIS OF THE PUBLIC WORKS PROTECTION ACT
A Legal Analysis of the Legislation
Many stakeholders have questioned the constitutional validity of the PWPA and O Reg
23310 The Ontario Ombudsman seriously questioned whether O Reg 23310 could
pass ldquoconstitutional musterrdquo80 The CCLA suggested that the broad police powers
granted under the PWPA were inconsistent with the Charter81
To the same effect were comments made by Premier Dalton McGuinty who described
the PWPA as ldquoan archaic law that was used to undermine Torontoniansrsquo civil rights
during the G20rdquo82 He elaborated83
The issue is whether itrsquos appropriate given our present-day values and given an old law which I am confident doesnrsquot strike the balance that you and I would want today in terms of public safety and individual freedom of expressionhellipWhen you start talking about civil rights individual freedoms yoursquore talking about those things that in fact define us as a free and democratic societyhellipItrsquos something that is real and meaningful and important to all of us
The Terms of Reference for this Review do not require that I conduct a constitutional
analysis of the PWPA I have however been asked to consider areas for reform and if
appropriate make specific recommendations for amendment or repeal This does require
that I therefore consider whether the legislation may be vulnerable to constitutional
challenge
Section 2(b) of the Charter guarantees everyone the fundamental freedom of expression
The definition of ldquoexpressionrdquo has been interpreted broadly ldquoActivity is expressive if it
80 Supra note 32 at para 23381 Supra note 26 p 982 Robert Benzie and Rob Ferguson ldquoMcGuinty shifts focus to fixing G20 lawrdquo Toronto Star (10 December 2010) online thestarcom lthttpwwwthestarcomnewscanadaarticle905436--mcguinty-shifts-focus-to-fixing-g20-lawgt 83 Ibid
36
attempts to convey meaningrdquo84 While freedom of expression is not absolute there is
very little that is not considered expression However expression that advocates violence
is not protected under s 2(b)85
The Supreme Court of Canada in Committee for the Commonwealth of Canada v
Canada held that s 2(b) ldquodoes not encompass the right to use any and all government
property for purposes of disseminating onersquos views on public matters but I have no doubt
that it does include the right to use for that purpose streets and parks which are dedicated
to the use of the public subject no doubt to reasonable regulation to ensure their
continued use for the purposes to which they are dedicatedrdquo86 It seems clear that
protesting in public streets is a form of expression protected by s 2(b) Protesting at an
intergovernmental conference is clearly expressive in nature
In challenges alleging that a statute contravenes s 2(b) of the Charter a court would
examine whether the purpose or effect of a law contravenes section 2(b)87 There is no
reason to suggest that the purpose of the PWPA was to infringe the freedom of
expression The purpose of the PWPA is to protect important public infrastructures A
court would then have to consider whether the effect of the PWPA may have resulted in
an infringement of freedom of expression
O Reg 23310 defined significant portions of downtown Toronto as a ldquopublic workrdquo
Section 3(c) of the PWPA allows peace officers to refuse entry into public works which
therefore limits the areas in which protesters could express themselves By creating the
84 Irwin Toy Ltd v Queacutebec (Attorney General) [1989] 1 SCR 927 at 96885 Ibid at 97086 [1991] 1 SCR 139 at 165-16687 Peter Hogg Constitutional Law of Canada loose-leaf (consulted on 7 January 2011) 5th ed (Toronto Thomson Reuters Canada Limited 2007) at 43-6
37
relatively large security perimeter designated by the regulation individuals may allege
they were not permitted to communicate directly with those they were protesting against
Furthermore individuals could not communicate in public places such as public streets
where the right to freedom of expression has previously been found to exist88
Commissioner Ted Hughes completed an interim report following a public hearing into
the complaints regarding events that took place with respect to the Asia Pacific Economic
Cooperation (APEC) Conference in Vancouver British Columbia in November 1997
Commissioner Hughes recommended that generous opportunity should be afforded to
peaceful protesters to be seen in their protest activities by guests at the event89
Section 7 of the Charter provides that ldquoEveryone has the right to life liberty and security
of the person and the right not to be deprived thereof except in accordance with the
principles of fundamental justicerdquo The PWPA raises issues regarding the liberty and
security of the person in providing for warrantless searches and stopping for
identification Furthermore vague laws offend two fundamental values of our legal
system90 Firstly individuals are not provided with sufficient guidance as to what
behaviour a law prohibits Secondly those in charge of enforcing the law are not
provided with clear guidance as to how to enforce it A vague law can lead to inconsistent
and arbitrary enforcement91
88 Supra note 86 89 Canada Commission for Public Complaints Against the RCMP APEC ndash Commission Interim Report (31 July 2001) at s 3111 (Commissioner Ted Hughes QC) online Commission for Public Complaints Against the RCMP lthttpwwwcpc-cppgccaprrrepphrapecapec-31-engaspxgt90 Supra note 87 at 47-60 91 ldquoA vague provision does not provide an adequate basis for legal debate that is for reaching a conclusion as to its meaning by reasoned analysis applying legal criteria It does not sufficiently delineate any area of risk and thus can provide neither fair notice to the citizen nor a limitation of enforcement discretion Such
38
As described by Professor Hogg92
The requirement that any limit on rights be prescribed by law reflects two values that are basic to constitutionalism or the rule of law First in order to preclude arbitrary and discriminatory action by government officials all official action in derogation of rights must be authorized by law Secondly citizens must have reasonable opportunity to know what is prohibited so that they can act accordingly Both these values are satisfied by a law that fulfils two requirements (1) the law must be adequately accessible to the public and (2) the law must be formulated with sufficient precision to enable people to regulate their conduct by it and to provide guidance to those who apply the law
As I stated earlier the phrase ldquoany approach theretordquo contained in s 3(a) of the PWPA is
potentially vague No criteria are provided to assist in determining when one is on ldquoany
approach theretordquo A phrase such as ldquoany approach theretordquo is subject to many potential
interpretations It is arguable that this language does not provide reasonable guidance for
individuals to obey the law and for the law to be consistently enforced
Section 8 of the Charter provides that ldquoEveryone has the right to be secure against
unreasonable search or seizurerdquo A warrantless search or seizure is only reasonable if the
search was authorized by law the law itself is reasonable and the manner in which the
search carried out was reasonable93 The fact that no reasonable or probable suspicions
are needed to carry out a search pursuant to s 3(b) of the PWPA raises some issues The
only prerequisite to such a search is that the person or vehicle being subjected to a search
is entering or attempting to enter a public work
a provision is not intelligible to use the terminology of previous decisions of this Court and therefore it fails to give sufficient indications that could fuel a legal debaterdquo (R v Nova Scotia Pharmaceutical Society [1992] 2 SCR 606 at 639-640) 92 Supra note 87 at 38-1293 R v Nolet [2010] SCJ No 24 at para 21
39
Whether the PWPArsquos s 3(b) authority to undertake warrantless searches is ldquoreasonablerdquo
depends on the reasonableness of the impact on the subject of the search ldquoThe
individuals reasonable expectation of privacy must of course be balanced against the
public interest in effective law enforcementrdquo94 It is harder to justify a warrantless search
where the reasonable expectation of privacy is higher For example interference with
bodily integrity will raise the standard of reasonableness Conversely in situations where
people expect to have a lower level of privacy the standard to prove reasonableness is
lower
One rightfully has some expectation of privacy when in public but it does not rise to the
level of privacy that one expects in onersquos home The expectation of privacy further
decreases when one attempts to enter a ldquopublic workrdquo especially in the context of a
secured barrier to an intergovernmental conference
Section 9 of the Charter provides that ldquoEveryone has the right not to be arbitrarily
detained or imprisonedrdquo95 Under s 3(a) of the PWPA a person entering or attempting to
enter or approach a public work must provide his or her name and address and state the
purpose for which he or she desires to enter the public work In order for a guard or
peace officer to carry out this duty the guard or peace officer may ldquostoprdquo the person from
further approaching or entering the public work and the person is not permitted under the
statute to decide not to enter By so doing it is arguable the guard or peace officer has
assumed control over the movement of the individual by a demand or direction The
94 R v Rao [1984] OJ No 3180 at para 79 (CA)95 ldquoDetention under s 9hellipof the Charter refers to a suspension of the individualrsquos liberty interest by a significant physical or psychological restraint Psychological detention is established either where the individual has a legal obligation to comply with the restrictive request or demand or a reasonable person would conclude by reason of the state conduct that he or she had no choice but to complyrdquo (R v Grant [2009] SCJ No 32 at para 44)
40
PWPA provides for a significant legal consequence if the demand or direction is not
followed since ldquoEvery person who neglects or refuses to comply with a request or
direction made under this Act by a guard or peace officer and every person found upon a
public work or any approach thereto without lawful authority the proof whereof lies on
him or her is guilty of an offence and on conviction is liable to a fine of not more than
$500 or to imprisonment for a term of not more than two months or to bothrdquo96
Pursuant to s 3(b) of the PWPA a guard or peace officer may search any person entering
or attempting to enter a public work These searches would necessitate the detention of a
person If a guard or peace officer performs such a search he or she has taken control
over the movement of the person by a demand or direction The same serious legal
consequence results from failing to obey this demand or direction as that which results
from failing to obey the demand or direction pursuant to s 3(a) of the PWPA As a
result ldquodetentionsrdquo could occur pursuant to both s 3(a) and s 3(b) of the PWPA
The question that would need to be addressed in any challenge to the PWPA is whether
the detentions permitted by the PWPA are arbitrary in nature The use of the term ldquoany
approach theretordquo is vague and imprecise A person could be deemed to be on ldquoany
approach theretordquo a great distance from the entrance of a public work and their detention
might very well be arbitrary In addition the fact that the guards and peace officers
determine the boundaries of the ldquoapproachesrdquo which cannot be contested seems
arbitrary as well as who they chose to search
96 It should be noted that not all communications with state authorities and police officers will amount to a detention The question is whether a person may reasonably believe that he or she is free to refuse to comply
41
Section 11(d) of the Charter provides that ldquoAny person charged with an offence has the
right to be presumed innocent until proven guilty according to law in a fair and public
hearing by an independent and impartial tribunalrdquo This requires that the Crown have the
burden of proving the guilt of an individual charged with an offence97 Provisions that
place the burden on the accused to disprove on the balance of probabilities an essential
element of an offence raises s 11(d) concerns because convictions would be possible
even if reasonable doubt existed98 The presumption of innocence is not only infringed
upon by a requirement that an accused disprove an essential element of an offence but
also any requirement on an accused to prove a fact on the balance of probabilities to
avoid conviction
Section 5(1) of the PWPA states that ldquoEvery person who neglects or refuses to comply
with a request or direction made under this Act by a guard or peace officer and every
person found upon a public work or any approach thereto without lawful authority the
proof whereof lies on him or her is guilty of an offence and on conviction is liable to a
fine of not more than $500 or to imprisonment for a term of not more than two months or
to bothrdquo For the offence of being found upon a public work or on any approach to a
public work without lawful authority the burden of proof has been ldquoshiftedrdquo from the
Crown to the accused to prove lawful authority
As the foregoing analysis reveals there are certainly many concerns that arise when one
places the PWPA under the lens of the Charter However the rights and freedoms
provided by the Charter are not absolute They are ldquosubject only to such reasonable
97 R v Oakes [1986] 1 SCR 10398 Ibid at 132
42
limits prescribed by law as can be demonstrably justified in a free and democratic
societyrdquo99
In assessing whether a law which infringes the Charter is saved by s 1 a court examines
both the object of the law and the measures taken to achieve that objective A lawrsquos
objective achieves the status of being sufficiently important to justify overriding a
Charter right only when it is consistent with the values of a free and democratic society
The objective must relate to pressing and substantial concerns and not concerns that are
trivial and must be focussed on ldquothe realization of collective goals of fundamental
importancerdquo100 The measures adopted must be ldquorationally connectedrdquo to the objective of
the law101 The measures ldquoshould impair lsquoas little as possiblersquo the right or freedom in
questionrdquo102 Furthermore there must be ldquoa proportionality between the effects of the
measures which are responsible for limiting the Charter right or freedom and the
objective which has been identified as of lsquosufficient importancersquordquo103
An issue that may affect whether the potential limitation on rights and freedoms of the
PWPA and O Reg 23310 were ldquoprescribed by lawrdquo is whether the regulation was
adequately accessible to the public The Ontario Ombudsman the CCLA and the Ontario
Bar Association (ldquoOBArdquo) all noted a lack of notice regarding O Reg 23310 and its
effects prior to and during the G20 While the text of the regulation was available prior
99 Charter s 1 The Superior Court of Quebec decision of Tremblay v Queacutebec (Attorney General) [2001] JQ No 1504 (CS) involved an interim injunction brought by an applicant who was denied entry into the secured perimeter during the 2001 Summit of the Americas in Queacutebec City The applicant sought an injunction to either eliminate the security barrier or to be given a pass to let him within the secured perimeter Even though the Court held that the erection of the security zone violated the applicantrsquos right to freedom of expression and peaceful assembly The court held that the infringement was ldquodemonstrably justified in a free and democratic societyrdquo100 Supra note 97 at 136101 Ibid at 139102 Ibid103 Ibid
43
to the G20 it was only available on a website not frequently accessed by the public
Since O Reg 23310 was not published in The Ontario Gazette until after it was
revoked it may be that the regulation was not adequately accessible to the public
Reverse onus offences have been found to be ldquorationally connectedrdquo when there is plainly
a rational connection between the proven fact and the fact to be presumed Reverse
onuses have also been upheld when the burden placed on the Crown would be virtually
impossible to meet (such as proving sanity)104 Even if the accused only has the burden
of disproving the fact that heshe did not have lawful authority to be in a public work or
on an approach thereto there may not be a rational connection between the proven fact
and the fact to be presumed
The history of threats and violence at previous intergovernmental conferences
demonstrated that the protection of G20 participants was a pressing and substantial
concern However given the broadness of the PWPA every exercise of it raises the
potential for Charter scrutiny
Recommendation
Given the public policy considerations I have raised regarding the PWPA and Charter
concerns that could arise I recommend that the PWPA be repealed after the Province has
considered potential policy and security gaps as a result of its repeal
B Other uses of the Public Works Protection Act
It appears from my consultations with stakeholder groups that if the PWPA is repealed
104 R v Chaulk [1990] 3 SCR 1303 at 1340
44
there are two areas which may require legislation to provide specific peace officer
powers These two areas are court security and the protection of nuclear power facilities
and other power generating infrastructures
1 Court Security
During my decade as Ontariorsquos Attorney General (1975 to 1985) there were three
murders in provincial courthouses as well as many threats to members of courthouse staff
and others As violent acts in courthouses can be anticipated courtroom security is often
required
Individuals are compelled to go to court for a variety of reasons such as appearing as an
accused as a witness or for jury duty To provide protection to those who work there or
are compelled to attend an adequate level of court security may require a search without
warrant of each and every individual who seeks to enter a courthouse It is not reasonable
to require prior judicial authorization for each search that takes place
The courts have considered the constitutionality of these provisions of the PWPA in
conjunction with section 137 of the Ontario Police Services Act in the context of court
security
Section 137 of the Ontario Police Services Act imposes a responsibility on municipal
police services boards to secure the premises where court proceedings are conducted and
includes
1 Ensuring the security of judges and of persons taking part in or attending proceedings
45
2 During the hours when judges and members of the public are normally present ensuring the security of the premises
3 Ensuring the secure custody of persons in custody who are on or about the premises including persons taken into custody at proceedings
4 Determining appropriate levels of security for the purposes of paragraphs 1 2 and 3
In R v Campanella105 Ms Campanella was attending the John Sopinka Courthouse in
Hamilton At the courthouse there were signs posted stating that those who entered
would be searched for weapons When Ms Campanellarsquos bag was searched marijuana
was found and she was charged with the possession of marijuana She argued that her s
8 Charter protection against unreasonable search and seizure had been violated and the
marijuana discovered during the search should therefore be excluded as evidence The
trial judge and the summary convictions appeal court rejected the section 8 Charter
argument and the appellant appealed to the Ontario Court of Appeal
The Ontario Court of Appeal agreed that ldquogiven the importance of the government
objective and the context in which these searches take place it is reasonable to authorize
warrantless searches of those entering courthouse facilitiesrdquo106 The Court stated ldquothe
only effective way to diminish the risk in a large courthouse is to subject everyone
without prior security clearance to some kind of inspection I can see no other feasible
means of achieving the aimrdquo107
The Court also pointed out the concern relating to the erosion of the benefits and
105 [2002] OJ No 5104 (SCJ) affrsquod [2005] OJ No 1345 (CA) [ldquoCampanellardquo]106 R v Campanella [2005] OJ No 1345 at para 17 (CA)107 Ibid at para 19
46
protections conferred by s 8 of the Charter108
I am sensitive to the concern that we should not erode the benefits and protections of s 8 by gradually sanctioning ever-greater intrusions into privacy because of unfounded fears We should not lightly accept that searches in public places are justified solely because people have become used to them and expect them However the record in this case establishes the justification for the kinds of searches carried out in this case
Ultimately the appeal was dismissed and s 137 of the Police Services Act and s 3(b) of
the PWPA) were held to comply with s 8 of the Charter109
In its consultations with me the OBA similarly stated that the existing nature of court
security is necessary and is generally ldquowell toleratedrdquo At the same time however it
submits that the security regime should not be ldquoshoehornedrdquo into the PWPA regime and
that it would be preferable to provide a legislative framework tailored for the specific
security requirements While the PWPA has been relied upon as support for the exercise
of powers by the police in providing court security the OBA submits that the PWPArsquos
ldquosingle security schemerdquo which declares something a ldquopublic workrdquo is an ldquoawkward
blunt instrument in a world where more specialized tools are necessaryrdquo When
warrantless searches are being done on a routine basis it is advisable to have specific
legislation providing peace officers with such power
Recommendation
Court security legislation is currently in place in many jurisdictions across Canada and
contain provisions that permit warrantless searches of persons wanting to access a
108 Ibid at para 25109 The Court in R v SS [2005] OJ No 5002 (SCJ) agreed with the findings and rationale of the Court of Appeal in Campanella
47
courthouse The constitutional validity of such legislation in Manitoba was upheld by that
provincersquos highest court110
Given the ongoing need for warrantless searches at courthouses the Province of Ontario
should consider specific court security legislation in Ontario to support the security
measures in our courthouses if the PWPA is to be repealed taking into consideration the
responsibilities of the municipal police services boards provided in s 137 of the Police
Services Act This legislation should only be passed after proper notice consultation and
legislative debate
2 Power Generating Infrastructures
It is clear from the submissions that I received from representatives of OPG and the
Canadian Nuclear Safety Commission (ldquoCNSCrdquo) that the PWPA currently plays a role in
providing security officers with the powers to secure power generating infrastructures
including the ability to carry firearms and the ability to stop and require identification
from those in proximity to those nuclear plants
Security is of the utmost importance in protecting a nuclear power plant Members of the
public do not need to access a nuclear or similar power facility unless employed at the
facility or carrying out work for the facility111
The security of areas within nuclear power plants is governed by the Nuclear Security
110 R v Lindsay [2004] MJ No 380 (CA) 111 Though the discussion focuses on nuclear power plants I have been informed that other power generating infrastructures use the PWPA to designate their security officers as guards As a result if the PWPA is repealed it will be necessary to broaden the consultations in relation to these other power generating infrastructures
48
Regulations112 Every nuclear power plant must be located within a ldquoprotected areardquo113
This protected area is the area within a fenced perimeter which is alarmed and
continually patrolled This area must be equipped with devices that employ two
independent systems to detect intrusion into the area114 The Nuclear Security
Regulations also provide detailed specifications for the barrier which must enclose the
protected area115 In addition licensees must ldquoidentify all vital areas and implement
physical protection measures ndash including access control and measures designed to delay
unauthorized accessrdquo116
The Nuclear Security Regulations also provide detailed provisions regarding entry into
protected areas No person can ldquoenter a protected area without physical proof of the
recorded authorization of the licenseerdquo117 Further to this on entry into a protected area
ldquothat personrsquos identity shall be verified by two separate personnel identity verification
systems one of which is an access card reader and the other of which is a biometric
personnel identity verification devicerdquo118 Licensees must also ldquoensure that vehicle
portals are used for the entry and exit of land vehicles into and from a protected areardquo119
Physical protection measures are also required to reduce the chance of a forced land
vehicle entry into a protected area120
The power to conduct searches upon entry to a protected area is also provided by the
112 SOR2000-209 113 Ibid s 8114 Ibid s 11(a)(i)115 Ibid s 9116 Ibid s 141117 Ibid s 17(1)118 Ibid s 171119 Ibid s 91(1)120 Ibid s 91(4)
49
Nuclear Security Regulations Signs must be posted that are visible to people about to
enter the protected area stating that they must allow a nuclear security officer (ldquoNSOrdquo) to
ldquosearch them and everything in their possession including any land vehicle for weapons
and explosive substancesrdquo121 In addition when leaving the protected area people must
allow NSOs to ldquosearch them and everything in their possession including any land
vehicle for Category I II or III nuclear materialrdquo122 People are not permitted to enter or
leave a protected area unless these searches are carried out123 The Nuclear Security
Regulations provide for the method of search including ldquoa hand-held scanner a walk-
through scanner or any similar devicerdquo124 In addition if an NSO determines it
necessary a frisk search can be carried out by a person of the same sex125
I have been informed that the area outside of but adjacent to the ldquoprotected areardquo is
referred to as the ldquocontrolled areardquo This area includes roadways and waterways within
the nuclear facilityrsquos property boundaries adjacent to or in close proximity to the nuclear
power plantrsquos protected area and may be generally accessible to the public
As a result of the September 11 2001 terrorist attacks the Nuclear Security Regulations
were amended to require that high security nuclear facilities maintain an on-site armed
Nuclear Response Force (ldquoNRFrdquo)126 The NRF is composed of specialized NSOs
Section 32 of the Nuclear Security Regulations requires the NRF to be capable of making
an effective intervention taking into account the threat
121 Ibid s 27(1)(a)122 Ibid s 27(1)(b)123 Ibid s 27(2)124 Ibid s 27(5)(a)125 Ibid s 27(5)(b)126 Ibid s 32
50
Members of the NRF are mandated by the Nuclear Security Regulations to be ldquotrained in
the use of firearms authorized to carry firearms in Canada and qualified to use themrdquo127
However to satisfy this requirement the NRF resorts to the PWPA since the federal
regulations do not authorize the NRF to carry firearms without a licence However
under s 2(1) of the PWPA NSOs are designated as ldquoguardsrdquo with the powers of a peace
officer most significantly to carry and use firearms without having to be licensed128
Such a designation also enables the OPG to acquire and dispose of firearms
In the consultations I had with the OPG and the CNSC they advised me that NSOs
receive training equivalent to Canadian police standards and that NRF officers receive
training equivalent to federal and provincial police tactical team requirements
Another aspect of the PWPA used to secure nuclear power plants relates to powers
exercised by NSOs in ldquocontrolled areasrdquo The federal regulations do not provide the
NSOs with any power to demand identification within this area However pursuant to
the PWPA as appointed ldquoguardsrdquo the NSOs have the power to demand identity
verification in the controlled area They also have the authority to arrest anyone who
obstructs NSOs in the performance of their duties under the PWPA
In addition to using the PWPA to secure the controlled areas I have been advised by the
OPG that NSOs use powers pursuant to the PWPA to secure areas within 100 metres of a
nuclear facilityrsquos property line immediately adjacent to the controlled area These powers
are exercised under the broad language of the PWPA regarding ldquoapproaches to public
127 Ibid s 1 (on-site nuclear response force definition)128 Section 11707 of the Criminal Code exempts peace officers from licensing requirements for possessing firearms and other prohibited and restricted weapons
51
worksrdquo This is an illustration of the problem with the vagueness of this language in the
legislation As these powers are exercised on public land they could be challenged as a
potential infringement on individual rights and freedoms However I have been advised
that there have been no such incidents to date The need to ensure the security of these
facilities must be taken into the balance
NSOs must be able to monitor and control access to the controlled areas and areas close
to a nuclear power plantrsquos property line This provides for a more secure perimeter
around these facilities They need authority to challenge individuals acting in a suspicious
manner or conducting surveillance of nuclear facilities The OPG has informed me that
areas outside a nuclear facilityrsquos property line immediately adjacent to the controlled
area are still close enough to take advantage of the short distance to conduct intelligence
using high-powered surveillance equipment These nuclear power plants are not located
on isolated islands and are therefore vulnerable Both the Pickering Nuclear Generating
Station and the Darlington Nuclear Generating Station operate within major urban areas
being 30 km and 60 km east of downtown Toronto respectively I am advised that
previous events such as ldquoThe Toronto 18rdquo129 have shown that those intent on targeting
vital infrastructure such as power generating facilities often use reconnaissance and
intelligence gathering as precursor tactics
Recommendation
If the PWPA is to be repealed it is imperative that those who secure our nuclear and
power generating facilities be given the requisite specific legislative powers to do so
129 See for example ldquoLast 2 Toronto 18 accused found guiltyrdquo CBC News (23 June 2010) online cbcca lthttpwwwcbccanewscanadatorontostory20100623toronto-18-verdicthtmlgt
52
The source for these powers should be set out in the federal Nuclear Security
Regulations However if this is not a desired option the Government of Ontario must
consider specific legislation setting out the specific powers required to properly secure
these facilities and the specific location in which these powers can be exercised Such
legislation should not be passed without proper notice consultation and legislative
debate
53
SECTION 6 CONCLUSION
The PWPA was enacted in 1939 to support the war effort At the time the protection of
Ontariorsquos hydroelectric facilities from sabotage was of particular concern Since then the
PWPA has been used to provide the legal foundation for the powers exercised by the
police in providing court security and even more recently by the OPG in securing
nuclear power facilities In June 2010 the PWPA was used to provide powers to secure
intergovernmental conferences The vagueness of the PWPA permits it to be used in
situations when it is arguably not necessary and potentially abusive In my view the
PWPA has been used for purposes beyond its original intent
The time for the PWPA seems to have passed If the Government of Ontario enacts as I
have suggested specific legislation to provide for courthouse security and power
generating infrastructure security it would appear that there is no longer a need for the
PWPA I am also mindful of the existence of counter-terrorism and emergencies
legislation to deal with these situations as they arise
ldquoIn determining the boundaries of police powers caution is required to ensure the proper
balance between preventing excessive intrusions on an individualrsquos liberty and privacy
and enabling the police to do what is reasonably necessary to perform their duties in
protecting the publicrdquo130 The overly broad and vague language of the PWPA does not
strike this required balance with individual rights and freedoms
The late Justice Jackson of the United States Supreme Court stated that every
emergency power once conferred ldquolies about like a loaded weapon ready for the hand of
130 R v Clayton [2007] 2 SCR 725 at 742
54
any authority that can bring forward a plausible claim of an urgent needrdquo131 The need to
protect the public must be balanced with the requirement to preserve fundamental rights
and freedoms
Yet at the same time ldquoCanadians are entitled to demand the best public order policing
possible from their governmentrdquo132 There is no question that we live in a different world
post 911 We live in difficult times with constant threats both domestically and from
abroad The police clearly need to be given adequate powers to carry out their duties
The police use their expertise on a daily basis to assess the powers they require In
instances when they take action that exceeds their powers their actions are examined by
various mandated bodies This process I believe results in the proper balance between
police powers and individual rights and freedoms Therefore any legislation that purports
to grant special police powers must be specific and direct and developed in consultation
with stakeholders and tested through thorough debate in our transparent democratic
system
131 Korematsu v United States 323 US 214 (1944)132 Supra note 26 p 8
55
attempted to obtain support for its security measures through reliance on a federal statute
the Foreign Missions and International Organizations Act (ldquoFMIOArdquo) which provides
that the RCMP can take ldquoappropriate measuresrdquo to ensure the proper functioning of an
intergovernmental conference ldquoin a manner that is reasonable in the circumstancesrdquo8
On May 7 2010 John Burke Deputy Minister of Community Safety and Correctional
Services of Ontario wrote to William Baker Deputy Minister of Public Safety Canada9
stating that security would be enhanced by the existence of an agreement pursuant to s
101(4) of the FMIOA which provides that the Federal Minister of Public Safety may
enter into arrangements with the government of a province concerning the responsibilities
of members of the RCMP and provincial municipal police forces with respect to
ensuring security for the proper functioning of a conference
On June 11 2010 the Provincial Deputy Minister received a reply10 from the Federal
Deputy Minister indicating that such an agreement would not be required for the
Summits since ldquothe current suite of powers and authorities that peace officers possess at
common law or by virtue of any other federal or provincial Act or regulation were
sufficient for the G8 and G20 Summitsrdquo
The Federal Deputy Minister was clear that in his view the police had sufficient authority
at common law and in statute to secure these conferences Similarly the OPP were of the
view that it was not necessary for the police forces to have any additional police powers
8 SC 1991 c 41 s 101(2) Attached as Appendix 5 is a copy of selected sections of the FMIOA 9 Attached as Appendix 6 is a copy of the May 7 2010 letter10 Attached as Appendix 7 is a copy of the letter received on June 11 2010
10
other than those already conferred by virtue of common law and statute (excluding the
PWPA) in order to secure the interdiction zones for the Summits
On May 12 2010 Chief William Blair of the TPS wrote to the Honourable Rick
Bartolucci Minister of Community Safety and Correctional Services11 stating that a
ldquocornerstonerdquo of the TPS security plan for the G20 Summit would be the establishment of
a security perimeter in an area around the Metro Toronto Convention Centre The
purpose of this security perimeter as explained in the letter was to ldquoensure the safety and
security of those attending the Summit the Summit site itself and people and property
within the area close to the Summit siterdquo Chief Blair indicated that the TPS would rely
upon the authority granted to it pursuant to the common law and if certain conditions are
met the FMIOA12 to establish and control the security perimeter However he believed
that the provisions of the PWPA ldquowould also offer legal support for the extraordinary
security measuresrdquo he believed would be necessary Chief Blair therefore requested ldquothe
Lieutenant Governor in Council to designate the area of or highways within the intended
security perimeter as a public work for the period from June 21 2010 through the end of
the Summit on June 27 2010rdquo A detailed description of the area requested to be
designated as a public work was provided to Minister Bartolucci as well as an aerial
photograph of the area
I am not aware that any organization publicly questioned the inherent police power to
erect fences defining the interdiction zone The Canadian Civil Liberties Association
11 See Appendix 312 This probably is in reference to s 101(4) of the FMIOA which provides the authority for the Minister of Public Safety and Emergency Preparedness to enter into arrangements with the government of a province concerning the responsibilities of members of the RCMP and members of the provincial and municipal police forces with respect to ensuring the security for the proper functioning of an intergovernmental conference
11
(ldquoCCLArdquo) published a document entitled ldquoProtecting civil liberties and human rights at
the G20 statement of concernsrdquo on May 21 201013 In this document the CCLA
expressed concern with the size of the security perimeter ldquoParticularly where there is a
primary fence to ensure safety around conference venues and delegate hotels any further
restrictions on mobility or protest must be fully and carefully justifiedrdquo14 However the
CCLA supported ldquothe overall goal of ensuring that the G20 is conducted in a manner that
is safe for delegates protesters and Toronto residents in generalrdquo15 and noted the
RCMPrsquos authority under the FMIOA There was no doubt expressed by the CCLA
concerning the power of police to erect security fences
By letter dated June 15 201016 Minister Bartolucci wrote to Chief Blair acknowledging
the request and stating in part
I agree that there are various sources of legal authority to support the security perimeter I also recognize the desirability of having additional sources of legal authority to ensure clarity regarding the ability of the Toronto Police Service to take the steps that it will be taking Accordingly I am pleased to inform you that a regulation has been made under the PWPA in response to your request
The Minister informed Chief Blair that O Reg 23310 had been filed with the Registrar
of Regulations and would come into force on June 21 2010 and would be revoked as of
June 28 2010 The area requested by Chief Blair to be designated as a ldquopublic workrdquo
was so designated in O Reg 23310
13 Canadian Civil Liberties Association Protecting civil liberties and human rights at the G20 statement of concerns May 21 2010 online Canadian Civil Liberties Association lthttpcclaorgwordpresswp-contentuploads201005G20-CCLA-Statement-of-Concernspdfgt14 Ibid p 415 Ibid p 316 Attached as Appendix 8 is a copy of the June 15 2010 letter
12
Four days earlier on June 11 2010 Mike McDonell the Assistant Commissioner of the
RCMP sent a letter to Chief Blair17 containing a thorough review of the statutory sources
of the RCMPrsquos duties and powers to secure intergovernmental conferences Assistant
Commissioner McDonell outlined the police authority to fully secure the G8 and G20
Summits
More specifically in relation to the Summits the RCMP will be taking measures to fulfill duties related to the protection of Internationally Protected Persons (IPPrsquos) that befall police in general and the RCMP in specific The official visit of the head of state or high ranking dignitary of a foreign country is an event that frequently engenders a real or apprehended threat to the preservation of peace which demands the adoption of proper and reasonable security measures in and by the host country
Furthermore Canada is a signatory of the United Nations Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons Including Diplomatic Agents In that regard Canada has specifically adopted laws requiring peace officers to protect IPPs as defined in section 2 of the Criminal Code in accordance with its international obligationshellip
Legal authorities also permit the RCMP to collaborate with other police forces such as the OPP in the fulfillment of its duties including in relation to securing the perimeter Such collaboration is essential in light of concurrent mandates of policing partners particularly in relation to the legal duties to preserve the peace and protect life and property
E O Reg 23310
On June 2 2010 Cabinetrsquos Legislation and Regulations Committee passed O Reg
23310 It was signed by the Lieutenant Governor on June 3 2010 and published on June
16 2010 on e-Laws a website maintained by the Government of Ontario not frequently
accessed by the public This website provides access to official copies of Ontariorsquos
statutes and regulations O Reg 23310 came into force on June 21 2010 and was
17 Attached as Appendix 9 is a copy of the June 11 2010 letter
13
revoked on June 28 2010 It was not published in The Ontario Gazette18 until July 3
2010 after it had already been revoked Section 23(2) of Ontariorsquos Legislation Act
200619 provides that a regulation is not effective against a person before the earliest of
when the person has actual notice of it the last instant on the day on which it is published
on the e-Laws website or the last instant of the day on which it is published in the print
version of The Ontario Gazette As a result though the technical requirements for
providing notice of O Reg 23310 were met I have concerns whether adequate notice
was given to the public especially in light of the fact that the regulation was not
published in The Ontario Gazette until it had already been revoked
The regulation set out the area where the security fence was to be erected and designated
that area as a ldquopublic workrdquo which then called into play all the powers provided by the
PWPA
ONTARIO REGULATION 23310
made under the
PUBLIC WORKS PROTECTION ACT
Made June 2 2010Filed June 14 2010
Published on e-Laws June 16 2010Printed in The Ontario Gazette July 3 2010
DESIGNATION OF PUBLIC WORKS
Designation 1 The following are designated as public works for the purposes of the Act 1 Everything described in clause (a) of the definition of ldquopublic workrdquo in section
1 of the Act that is located in the area described in Schedule 1 including without limitation and for greater certainty every sidewalk in that area
2 The places described in paragraphs 1 2 and 3 of Schedule 2
18 The Ontario Gazette contains Ontariorsquos legal notices and regulations19 SO 2006 c 21 Sched F
14
Revocation 2 This Regulation is revoked on June 28 2010
Commencement 3 This Regulation comes into force on the later of June 21 2010 and the day
it is filed SCHEDULE 1
AREA REFERRED TO IN PARAGRAPH 1 OF SECTION 1
The area in the City of Toronto lying within a line drawn as follows
Beginning at the curb at the southeast corner of Blue Jays Way and Front Street West then north to the centre of Front Street West then east along the centre of Front Street West to the east curb of Windsor Street then north along the east curb of Windsor Street to the centre of Wellington Street then east along the centre of Wellington Street to the centre of Bay Street then south along the centre of Bay Street to a point directly opposite the north wall of Union Station then west along the exterior of the north wall of Union Station to the centre of York Street then south along the centre of York Street continuing east of the abutments under the railway overpass and continuing south along the centre of York Street to the centre of Bremner Boulevard then west along the centre of Bremner Boulevard to the east curb of Lower Simcoe Street then south along the east curb of Lower Simcoe Street to the north curb of Lake Shore Boulevard West then west along the north curb of Lake Shore Boulevard West to the south end of the walkway that is located immediately west of the John Street Pumping Station and runs between Lake Shore Boulevard West and the bus parking lot of the Rogers Centre then north along the west edge of that walkway to the bus parking lot of the Rogers Centre then west along the south edge of the bus parking lot of the Rogers Centre to the west edge of the driveway running between the parking lot and Bremner Boulevard then north along the west edge of that driveway to the north curb of Bremner Boulevard then west along the north curb of Bremner Boulevard to the east curb of Navy Wharf Court then north along the east curb of Navy Wharf Court to the southwest point of the building known as 73 Navy Wharf Court then east along the exterior of the south wall of that building then north along the exterior of the east wall of that building to the curb of Blue Jays Way then north along the east curb of Blue Jays Way to the curb at the southeast corner of Blue Jays Way and Front Street West
SCHEDULE 2DESIGNATED PLACES REFERRED TO IN PARAGRAPH 2 OF SECTION 1
1 The area within the area described in Schedule 1 that is within five metres of a line drawn as follows Beginning at the south end of the walkway that is located immediately west of the John Street Pumping Station and runs between Lake Shore Boulevard West and the bus parking lot of the Rogers Centre then north along the west edge of that walkway to the bus parking lot of the Rogers Centre then west along the south edge of the bus parking lot of the Rogers Centre to the west edge of the driveway running between the parking lot and Bremner
15
Boulevard then north along the west edge of that driveway and ending at Bremner Boulevard
2 The area within the area described in Schedule 1 that is within five metres of a line drawn as follows
Beginning at the southwest point of the building known as 73 Navy Wharf Court then east along the exterior of the south wall of that building then north along the exterior of the east wall of that building and ending at the curb of Blue Jays Way
3 The below-grade driveway located between Union Station and Front Street West and running between Bay Street and York Street in the City of Toronto
F Information Given to Public Regarding Security Protocol
Attempts were made to inform the public about the security measures that would be in
place leading up to and throughout the G20 The City of Toronto in consultation with
the ISU produced an information article20 and flyers21 No mention is made in the article
or flyers of the PWPA or O Reg 23310 and the powers given to the police The City of
Toronto also prepared an advertisement which appeared in local newspapers22 The
original version of the advertisement made no reference to the fact that people would be
subject to a search when attempting to access the security perimeter although reference
was made to the requirement to show identification and to have a valid purpose for
entering the restricted area A later version of the advertisement included additional text
advising that anyone requesting access to the security perimeter may be subject to a
search However just as with the article and flyers no specific mention was made of the
PWPA or O Reg 23310
20 A million copies of the newsletter Our Toronto which contained an article entitled ldquoWhat to expect during the G20 ndash June 26 amp 27 2010rdquo were delivered to homes in the City of Toronto21 Approximately 10000 flyers were sent to homes and businesses within the affected area The flyercontained general information about security and the anticipated effects on traffic22 The advertisement appeared in the Toronto Star Toronto Sun and Metroland community papers
16
In the days leading up to and throughout the G20 Summit there was apparently a
misunderstanding on the part of the police regarding a purported ldquofive-metre rulerdquo This
confusion likely emanated from the ldquofive-metresrdquo referenced in Schedule 2 of O Reg
23310 However the purpose of Schedule 2 was to designate as ldquopublic work(s)rdquo three
specific private property locations on which the security fence was to be erected that were
not ldquopublic worksrdquo The remainder of the fence was on public sidewalks and streets
which are ldquopublic worksrdquo To ensure that the fence was located on a ldquopublic workrdquo the
drafters designated the area within five metres of the security fence in these three
locations as a ldquopublic workrdquo23 Unfortunately the wording of Schedule 2 was very
cumbersome and the relationship between the area defined in Schedule 1 and the five-
metre reference in Schedule 2 was difficult to understand
Because of this confusion unfortunately the message was conveyed that the regulation
provided for a five-metres zone outside the entire security fence and that therefore the
PWPA applied to this entire area24 The media reported during the G20 summit that the
police had ldquosweepingrdquo powers pursuant to the PWPA within five-metres outside of the
exterior security fence25 O Reg 23310 did not provide the police such authority
23 Attached as Appendix 10 is a copy of a map showing the three specific areas designated in Schedule 2 of O Reg 2331024 Jennifer Yang ldquoJust being near the G20 security zone can get you arrestedrdquo Toronto Star (25 June 2010) online thestarcom lthttpwwwthestarcomnewsgtatorontog20summitarticle828498--just-being-near-the-g20-security-zone-can-get-you-arrestedgt25 David Rider et al ldquoDalton McGuinty Bill Blair defend quiet boost in arrest powersrdquo Toronto Star (26 June 2010) online thestarcom lthttpwwwthestarcomnewsgtatorontog20summitarticle828974--dalton-mcguinty-bill-blair-defend-quiet-boost-in-arrest-powersgt
17
SECTION 3 COMMENTARY
A Public Policy Considerations
There are some overarching public policy considerations which affect the issues I have
been asked to address in the Terms of Reference
As stated earlier the legislation was the product of emergency World War II concerns
related to the possibility of enemy sabotage of important infrastructures The legislative
debates in September of 1939 were particularly concerned with the provincersquos
hydroelectric facilities However notwithstanding these apparently specific concerns
when drafted the definition of ldquopublic workrdquo is extraordinarily broad and from a policy
standpoint raises questions of overbreadth especially given the ability to designate
almost anything a public work In a mere definition section s 1 of the legislation allows
the Lieutenant Governor in Council to designate ldquoany other building place or workrdquo as a
ldquopublic workrdquo However taken to its logical conclusion an entire city or more could be
designated as a ldquopublic workrdquo The definition of ldquopublic workrdquo includes ldquoany provincial
and any municipal public buildingrdquo but ldquopublic buildingrdquo is not further defined thereby
creating an element of uncertainty as to the specific provincial and municipal buildings
captured by this definition While perhaps extreme measures in times of war require
flexibility in all other circumstances legislation of this nature requires limitations and a
more specialized approach
The expression ldquoprivate armyrdquo was used in the Ontario legislative debate in 1939
Theoretically at least private armies could be created through the use of the ldquoguardrdquo
appointing authority by the many individuals who are authorized to appoint guards
pursuant to the PWPA This authority was apparently in response to the Federal
18
Governmentrsquos refusal to assume through the Defence Department the responsibility of
guarding utilities and industries essential to the war effort While such a result might not
have been contemplated in a parliamentary democracy it is clearly unwise to leave such
a possibility open
Section 3 of the PWPA provides in part that a guard or a peace officer
(a) may require any person entering or attempting to enter any public work or any approach thereto to furnish his or her name and addresshellipand to state the purpose for which he or she desires to enter the public work in writing or otherwise
The primary problem I see with this section is the vagueness of the term ldquoapproach
theretordquo An approach could begin at a considerable distance from the public work
Section 6(b) also provides for the making of regulations ldquodefining the areas that
constitute approaches to public works either generally or with regard to a particular
public workrdquo
In addition s 3(b) of the PWPA provides that a guard or peace officer ldquomay search
without warrant any person entering or attempting to enter a public workrdquo This section
does not permit any person to abandon any attempt to enter a public work in order to
avoid being subjected to a warrantless search Such conduct is adopted by persons who
decide not to enter a secured courthouse in order to avoid a warrantless search
Section 4 provides that for the purposes of the PWPA the statement under oath made by
persons engaged in the operation of a public work ldquoas to the boundaries of the public
work is conclusive evidence thereofrdquo Section 4 should be considered with s 5(1) which
provides that ldquoevery person found upon a public work or any approach thereto without
lawful authority the proof whereof lies on him or her is guilty of an offencehellip(emphasis
19
added)rdquo The provision in s 4 that ldquothe statement under oathhellipis conclusive evidence
thereofrdquo appears to remove from a courtrsquos consideration what could be a legitimate
dispute as to the boundaries of a public work or the approach thereto Furthermore the
apparent reversal of the onus of proof regarding lawful authority to be found in a public
work or an approach found in s 5 is also troublesome from a policy and legal point of
view
Accordingly if utilized to the extreme many government officials could appoint many
private armies to restrict access to many (in fact any) public places where the mere
statement under oath by the private guard of the boundaries of the areas under restricted
access is conclusive proof thereof Such potential for abuse is beyond troubling to say
the least
B Review of other Public Reports
As is evident from the foregoing discussion many issues arise regarding the operation of
the PWPA in todayrsquos context These considerations and others also formed the basis of
concerns raised in public reports which I was asked to review
1 Reports of the Canadian Civil Liberties Association
The CCLA preliminary G20 report26 dealt with most of the police related events that
occurred in Toronto during the G20 conference during the weekend of June 26th and 27th
2010 I will only make reference to a few portions of the report that deal with the Terms
of Reference
26 Canadian Civil Liberties Association A Breach of the Peace ndash A Preliminary Report of Observations During the 2010 G20 Summit June 29 2010 online Canadian Civil Liberties Association lthttpcclaorgwordpresswp-contentuploads201006CCLA-Report-A-Breach-of-the-Peace-Preliminary-report-updated-July-8pdfgt
20
The report of the CCLA called for the repeal or significant amendment to the PWPA ldquoto
meet basic constitutional standardsrdquo27 The CCLA ldquosuggests that the broad police powers
granted under the Act are inconsistent with current Charter requirementsrdquo28
I agree with the observation of the CCLA that the provisions of the PWPA led to a ldquolack
of clarity as to the scope of the search and seizure powersrdquo29 which created many
difficulties and conflicts that probably could have been avoided I would also certainly
agree with a conclusory comment in this preliminary report that ldquoit is the duty of police
officers to act with fairness and equanimity toward all citizens in accordance with the law
of the country The presumption of innocence and the protection against arbitrary arrests
and detention are at the core of a commitment to justicerdquo30
The CCLA in partnership with the National Union of Public Employees organized
public hearings for two days in Toronto and one day in Montreal in November of 2010
which they referred to as a Citizens Inquiry The Citizens Inquiry heard from 63 members
of the public who had witnessed policing incidents or had been detained Several lawyers
and academics also participated in the hearing and offered commentary on the events of
the G20 from a legal or policing perspective including issues related to the PWPA A
report of the hearings titled ldquoG20 Toronto Breach of the Peace Public Hearingsrdquo was
released on February 28 2011 which also referred to the PWPA31
27 Ibid p 2228 Ibid p 929 Ibid p 1230 Ibid p 2131 Canadian Civil Liberties Association and the National Union of Public and General Employees G20 Toronto Breach of the Peace Public Hearings February 2011 online Canadian Civil Liberties Association lthttpcclaorgwordpresswp-contentuploads201102Breach-of-the-Peace-Final-Reportpdfgt
21
2 The Ontario Ombudsman Report
The Ontario Ombudsman commenced an investigation after receiving complaints relating
to a variety of issues concerning the G20 The Marin Report recognized that ldquotypically
international summits attract protests and protests can turn violent and even deadlyrdquo32
The report therefore does not quarrel with the requirement that a high level of security is
required for such events
The report in my view accurately describes the PWPA as ldquounique in Canada in terms of
the breadth of its reach and the powers it confershellipno other Canadian statute defining
lsquopublic worksrsquo contains provisions similar to those found in Ontariorsquos Actrdquo33
32 Ontario Ombudsman report Investigation into The Ministry of Community Safety and Correctional Servicesrsquo Conduct in Relation to Ontario Regulation 23310 under the Public Works Protection Act ldquoCaught in the Actrdquo by Andreacute Marin (Toronto Ombudsman of Ontario December 2010) online Ombudsman of Ontario lthttpwwwombudsmanoncamedia157555g20final1-enpdfgt (ldquoMarin Reportrdquo) at para 733 Ibid at para 97
22
SECTION 4 POWERS OF THE POLICE
Pursuant to the Terms of Reference I have been asked to consider for future purposes
whether the powers given to peace officers and guards under the PWPA are necessary to
protect public works secure intergovernmental conferences or for any other purposes
To answer that question it is necessary to assess whether the current common law and
statutory regime provide the police with sufficient powers to perform these vital services
A Common Law Powers and Powers Pursuant to Police Services Acts
The police have extensive common law powers that can be used in protecting and
securing intergovernmental conferences and in protecting public works It is necessary to
examine those powers in order to assess whether and what if any additional powers are
needed such as those provided by the PWPA
Of particular assistance in this regard is R v Knowlton34 where the Supreme Court of
Canada considered whether the powers possessed by peace officers at common law and
statute in securing an area for the protection of a foreign dignitary were lawful The
Supreme Court of Canada held that in order for the exercise of peace officer powers to be
lawful the powers must satisfy the two step test set out in R v Waterfield35 First the
power must be in furtherance of a lawful duty Traditional common law peace officer
duties include the preservation of the peace and the prevention of crime These common
law police duties amongst others are now statutorily enshrined in s 42(1) of Ontariorsquos
Police Services Act (and other provincial police services acts)36 The second part of the
test requires an evaluation of whether the conduct of the peace officer was ldquojustifiedrdquo To
34 [1974] SCR 443 [ldquoKnowltonrdquo]35 See for example R v Dedman [1985] 2 SCR 236 RSO 1990 c P15
23
do so one applies the standard of what is reasonably necessary in light of the totality of
the circumstances In evaluating whether the conduct of the peace officer was justified it
is important to consider ldquothe duty being performed the extent to which some interference
with individual liberty is necessary in the performance of that duty the importance of the
performance of the duty to the public good the nature of the liberty being interfered with
and the nature and extent of the interferencerdquo37
In Knowlton police in Edmonton cordoned off an area as part of the security
arrangements for the visit of Premier Kosygin of the USSR Premier Kosygin had been
assaulted in Ottawa a few days prior to his visit to Edmonton Knowlton entered the
secured area questioning the power of the peace officer to prevent his entry He was
arrested without a warrant and charged with obstructing a peace officer in the execution
of his duties Knowlton argued that the peace officer did not have the power to prevent
his entry and was not acting in the execution of his duty
The Supreme Court of Canada emphasized the heightened importance of security when
there are visiting foreign dignitaries38
It is notorious and of common knowledge that the official visit of the head of state or high rank dignitary of a foreign country friendly as either may be is an event that frequently engenders a real or apprehended threat to the preservation of peace and that calls therefore for the adoption of proper and reasonable security measures in and by the host countryhellipThe restriction of the right of free access of the public to public streetshellipwas one of the steps--not an unusual one--which police authorities considered and adopted as necessary for the attainment of the purpose aforesaid In my opinion such conduct of the police was clearly falling within the general scope of the duties imposed upon them
37 R v Mann [2004] 3 SCR 59 at 7938 Supra note 34 at 447-448
24
In addressing the first part of the Waterfield test the Court referenced provisions of the
Alberta Police Act and the Criminal Code and concluded that the conduct of the peace
officers fell within the general scope of the duties imposed upon them for example
preservation of the peace and prevention of crime39
According to the principles which for the preservation of peace and prevention of crime underlie the provisions of s 30 amongst others of the Criminal Code these official authorities were not only entitled but in duty bound as peace officers to prevent a renewal of a like criminal assault on the person of Premier Kosygin during his official visit in Canada In this respect they had a specific and binding obligation to take proper and reasonable steps The restriction of the right of free access of the public to public streets at the strategic point mentioned above was one of the steps--not an unusual one--which police authorities considered and adopted as necessary for the attainment of the purpose aforesaid In my opinion such conduct of the police was clearly falling within the general scope of the duties imposed upon them
In analyzing the second step of the Waterfield test the Court concluded that there was no
evidence indicating the police officers resorted to an unjustifiable use of the powers
associated with the duties imposed on them
The Court in Knowlton recognized broad police powers to cordon off areas as part of the
security arrangements involving internationally protected persons In addition the Court
found that the warrantless arrest in that case was not an unjustifiable or unreasonable use
of powers associated with the police duties to preserve the peace order public safety and
to enforce the law and prevent crime Finally the Court found that peace officers were
duty bound ldquoto prevent a renewal of a like criminal assault on the person of Premier
Kosygin during his official visit in Canadardquo40 Furthermore it stated the closing of public
39 Ibid 40 Ibid at 447
25
streets ldquowas one of the steps -- not an unusual one -- which police authorities considered
and adopted as necessaryrdquo41
The Knowlton decision clearly acknowledged that the police had the duty and authority to
establish and enforce a secured area to protect a foreign dignitary In order to carry out
these duties the police may do what is reasonably necessary in light of the totality of the
circumstances
Though Knowlton was decided prior to the enactment of the Canadian Charter of Rights
and Freedoms (the ldquoCharterrdquo) this does not in my view affect the clear statement by the
Supreme Court of Canada regarding the duty of the police under the common law and the
Alberta Police Act to provide this security While the facts of Knowlton were quite
compelling in relation to the obvious need to provide adequate security for Premier
Kosygin the decision is equally important authority regarding the general responsibilities
of the police at common law and statute in relation to the preservation of the peace
B Other Statutory Powers
1 Criminal Code
Some specific powers are provided to peace officers pursuant to the Criminal Code42
Section 31 gives peace officers the power to arrest an individual for breach of the peace
Peace officers can arrest those committing the breach of the peace or those who on
reasonable grounds heshe believe are about to join in or renew the breach of the peace
Peace officers also have powers at their disposal under ss 63-69 of the Criminal Code to
deal with the offences of unlawful assembly and riots
41 Ibid at 447-448 42 RSC 1985 c C-46
26
2 Trespass to Property Act
The Ontario Trespass to Property Act43 is a potential source of police power to arrest
without warrant those who are unlawfully on certain premises or who were recently
unlawfully on the premises and refuse to give their name and address44 This statute
deals with illegal entry into both private and public property by creating the offence of
trespass for those who without the express permission of the occupier enter on to
premises or engage in an activity on the premises when it is prohibited by the statute45
Though this statute is primarily used by private property owners to keep unwanted people
off of their property it has also been invoked by the Speaker of the House46 and by the
City of Toronto47 It must be noted however that using the Trespass to Property Act in
relation to removing individuals from ldquopublicrdquo places may raise Charter issues48
3 Foreign Missions and International Organizations Act
The RCMP as peace officers have the general duty to preserve the peace and prevent
crime and offences as set out in s 18 of the Royal Canadian Mounted Police Act49
Additional duties found in s 17 of the Royal Canadian Mounted Police Regulations
198850 include the protection of ldquointernationally protected personsrdquo as defined in s 2 of
the Criminal Code Internationally protected persons include heads of state and their
43 RSO 1990 c T2144 Ibid ss 9(1) 1045 Ibid s 2(1)46R v Behrens [2004] OJ No 5135 (CJ) The Court held that the issue of the trespass notices fell under the Speakerrsquos parliamentary privilege and were not reviewable even on the basis of a Charter argument47R v Semple [2004] OJ No 2137 (CJ)48 In R v Semple the defendants were charged under the Ontario Trespass to Property Act for entering the grounds of Toronto City Hall after being banned from doing so In the end the Court held that the defendantsrsquo peaceful entry onto the grounds was an expression as per s 2(b) of the Charter Torontorsquos notice under the Act infringed on this freedom and in these circumstances it could not be justified under s 1 of the Charter 49 RSC 1985 c R-1050 SOR88-361
27
family members The RCMPrsquos duty to protect internationally protected persons is also
found in s 6(1) of the Security Offences Act51
In addition Canada is a signatory of the United Nations Convention on the Prevention
and Punishment of Crimes against Internationally Protected Persons including
Diplomatic Agents52 This Convention provides that the Government of Canada must
protect visiting heads of state or government foreign ministers representatives or
officials of a state or any official or other agent of an international organization of an
intergovernmental character and the family members that accompany him or her The
RCMP has the responsibility to carry out these security measures
Pursuant to s 101(1) of the FMIOA ldquoThe Royal Canadian Mounted Police has the
primary responsibility to ensure the security for the proper functioning of any
intergovernmental conference in which two or more states participate that is attended by
persons granted privileges and immunities under this Act and to which an order made or
continued under this Act appliesrdquo
The powers to carry out this mandate are found in s 101(2) of the FMIOA ldquothe Royal
Canadian Mounted Police may take appropriate measures including controlling limiting
or prohibiting access to any area to the extent and in a manner that is reasonable in the
circumstancesrdquo It is noteworthy that the FMIOA has legislated the same powers
provided to the police under common law and statute
In order to trigger the RCMP powers described in s 101 the Governor in Council on the
51 RSC 1985 c S-752 UNGA Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons including Diplomatic Agents 20 February 1977 UN Doc I-15410
28
recommendation of the Minister of Foreign Affairs and pursuant to s 5 of the FMIOA
made the G8 Summit Privileges and Immunities Order 201053 on December 10 2009
This order was repealed and a subsequent order54 was made on January 13 2010 A
similar order55 for the G20 Summit was made on March 11 201056
Therefore during the G20 the RCMP had the specific statutory power to limit or
prohibit access to any area and to any extent as long as the measures were appropriate
and done in a manner that was reasonable in the circumstances ldquoThe RCMP may secure
the perimeter of the security zone on land with fencing and restrict access to this zone
through the use of checkpoints and other measuresrdquo57
Though not invoked during the G20 s 101(4) of the FMIOA provides that arrangements
can be entered into with a province concerning the responsibilities of members of the
RCMP and members of the provincial and municipal police forces with respect to
ensuring the security for the proper functioning of an intergovernmental conference No
information was provided to me as to why such an arrangement was not entered into for
the G20
These intergovernmental security provisions of the FMIOA were enacted just prior to the
G8 being held in Kananaskis Alberta in 2002 In light of violent protests at international
events and the 911 terrorist attacks in the United States the Federal Government
53 SOR2009-33654 SOR2010-1355 SOR2010-6256 Supra note 17 ldquoUpon such an Order being made the RCMP in co-operation and collaboration with other police forces becomes impressed with the primary responsibility of ensuring not only the protection of the IPPs but also ensuring lsquosecurity for the proper functioningrsquo of the intergovernmental conference To that end the FMIOA provides that the lsquoappropriate measures including controlling limiting or prohibiting access to any area to the extent and in a manner that is reasonable in the circumstancesrsquo may be takenrdquo57 Ibid
29
considered it timely ldquoto clarify in statute the present common law authority for police to
provide security and protection for high profile international eventsrdquo58 At such events it
was intended that ldquothe RCMP is the lead to make sure that security is providedrdquo59
Given that it was clearly the intention of the Federal Government to have the RCMP as
the lead police force at these international events consideration should be given to
expand the use of the FMIOA to cover all large scale international events such as the
Olympics the Pan American Games and international trade fairs as these events are
routinely attended by heads of state and senior government officials Most recently
Vancouver held the 2010 Olympic and Paralympic Winter Games60 Though federal and
municipal legislation were passed to assist in securing the Games expansion and
application of the FMIOA would have been a better approach The RCMP as the national
police force ought to be in charge pursuant to their authority under the FMIOA
4 Emergency Legislation
Through my consultations with the parties listed in Appendix 2 I heard that while we are
not in a time of war as in 1939 when the PWPA was enacted we live in an age of
international and local terrorism threats Our democratic society must be vigilant in
58 Canada House of Commons Debates 37th Parl 1st Sess No 93 (5 October 2001) at 100059 Canada House of Commons Standing Committee on Public Safety and National Security 40th Parl 3rd
Sess Evidence (25 October 2010)60 In anticipation of this event the Governor General in Council on the recommendation of the Minister of Transport pursuant to the Aeronautics Act (RSC 1985 c A-2) and the Canadian Air Transport Security Authority Act (SC 2002 c 9 s 2) passed the Vancouver 2010 Aviation Security Regulations (SOR2009-298) The purpose of the regulations was to enhance aviation security during the Games The Regulation provided for extra security and extra authorized means to conduct screenings In addition the Vancouver City Council passed the very lengthy By-law No 9962 known as the ldquoVancouver 2010 Olympic and Paralympic Winter Games By-Lawrdquo Specific security measures to be employed at a city live site (described thoroughly in a Schedule to the By-Law) that were enabled by this By-Law included The installation and monitoring of airport style and other security measures including magnetometers and X-ray machines the installation and monitoring of closed circuit television cameras the searching of any person who wished to enter on to a city live site and any bag luggage or other container carried by such person and the prohibiting of access to or removal from a city live site any person who refused to submit to a search
30
maintaining a proper level of security while recognizing that democratic values and
security issues can conflict where public order is at issue It is important to highlight that
provincial legislation exists dealing with both terrorism threats and emergency situations
I have been informed that federal and provincial counter-terrorism plans exist that
address preventing and responding to acts of terrorism
The Police Services Act regulations mandate police forces to establish procedures
consistent with federal and provincial counter-terrorism plans61 and to have policies with
respect to counter-terrorism62 In addition the Emergency Management and Civil
Protection Act allows for orders to be made in situations specifically designated an
ldquoemergencyrdquo63 by the Lieutenant Governor in Council or the Premier that regulate or
prohibit travel and movement to from or within any specified area64 Therefore the
PWPA is not needed to deal with these emergency situations as specific more recent
emergency legislation is in place for that very purpose
C Gaps in Canadian Police Powers
The Ministry of Community Safety and Correctional Services provided me with an
interesting article published in 2010 entitled ldquoThe Gap in Canadian Police Powers
61 Adequacy and Effectiveness of Police Services O Reg 399 s 2862 Ibid s 2963 Section 1 of the Emergency Management and Civil Protection Act defines an ldquoemergencyrdquo as ldquoemergencyrdquo means a situation or an impending situation that constitutes a danger of major proportions that could result in serious harm to persons or substantial damage to property and that is caused by the forces of nature a disease or other health risk an accident or an act whether intentional or otherwise (ldquosituation drsquourgencerdquo)64 RSO 1990 c E9 s 702(4)
31
Canada needs lsquoPublic Order Policingrsquo Legislationrdquo and co-authored by Wesley Pue and
Robert Diab65
This article was prompted by the debate over the cost nature and extent of security to be
employed at the Vancouver 2010 Winter Olympics The authors criticized the fact that
policing authorities in Canada ldquolack specific statutory authorization to take measures
commonly thought necessary to their missionrdquo66 These measures included security
fences in public areas designated protest areas restricted access to public space police
surveillance and searches without cause
The authors recognize that such powers may be necessary but note that ldquono legislature
has ever expressly conferred such powers on policing authorities outside the context of
international intergovernmental conferences Nor does the common law accord such
powers to state officials on its ownrdquo67 I respectfully disagree with this latter statement
It is my view the police have powers pursuant to the common law and statute as I have
discussed in the preceding section
The authors referred to R v Knowlton68 which I have previously discussed While the
authors give Knowlton a very narrow interpretation stating that ldquoits binding principle is a
good deal narrower than the words taken out of context might suggestrdquo69 I however am
of the view that the decision supports the proposition that police have a broad range of
65 Wesley Pue and Robert Diab ldquoThe Gap In Canadian Police Powers Canada Needs lsquoPublic Order Policingrsquo Legislationrdquo (2010) 28 Windsor Rev Legal Soc Issues 87 Wesley Pue is a professor of legal history at the University of British Columbia and Robert Diab is a PhD candidate at the UBC Faculty of Law66 Ibid p 8867 Ibid68 Supra note 3469 Supra note 65 p 92
32
responsibilities with deep historical roots in the common law and codified in statute a
position shared by the Federal Government when it introduced amendments to the
FMIOA The actions of the police in Knowlton were necessarily incidental to their
common law police duties and powers
The authors conclude that this ldquoauthority of police to create zones of exclusion either as
an incident of the general and ancient duties of constableshelliphas never been established in
the courtsrdquo70 I am of the view however that the role of the police in establishing
security zones relating to a crime a serious accident or other emergency is a routine and
well-accepted use of police powers pursuant to their common law and statutory duties I
am not suggesting that this common law authority permits the police to establish security
zones ldquofor the proper functioning of any intergovernmental conference in which two or
more states participaterdquo71 larger than necessary to fulfill their purpose The FMIOA as
amended in 2002 provides the RCMP with ldquoprimary responsibility to ensure the security
for the proper functioning of the intergovernmental conferencerdquo72 It is interesting
however that when the Federal Government was enacting this specific authority the
legislative debates indicated that the government was merely clarifying ldquoin statute the
present common law authority for police to provide security and protection for high
profile international eventsrdquo73
Security perimeters are routinely erected by police in the context of the commission of a
crime motor vehicle and other accidents as well as the Santa Claus parade and other
70 Ibid p 9671 Supra note 8 s 101(1)72 Ibid73 Supra note 58
33
parades It would in my view be quite impractical and unnecessary to legislate an
extensive code of police powers given their common law and statutory responsibilities to
generally maintain public order It is not advisable in my opinion to be prescriptive in
any way regarding what actions the police can take since they must assess what the
situation warrants while at the same time considering individual rights and freedoms
The details of any police response to an emergency must be tailored to the exigencies
related to the situation
The police clearly have common law and statutory authority to conduct warrantless
searches in specific situations (ldquoin exigent circumstancesrdquo)74 However when
warrantless searches must be carried out on a regular routine basis the police are acting
more like full time security guards and there should be specific statutory authority
provided to give such powers
I certainly accept the general proposition the authors assert that the mobility rights of
citizens should not be unreasonably or unfairly dealt with However one only need be
aware of the massive amount of construction taking place on the streets of Toronto as this
Report is being written to appreciate that it is not always reasonable to expect that ldquothe
rights of businesses homeowners and ordinary citizens to go about their routine
activities without interruptionrdquo75 will go unhindered While generally desirable it cannot
be legally guaranteed At the same time the authors do concede that ldquoimportant as they
74 Supra note 42 s 4871175 Supra note 65 p 89
34
are the rights of assembly movement and protest are not unqualified They can ndash and
should ndash be balanced against other important public needsrdquo76
In my view public policing at times requires innovation as it often benefits from
creative problem solving If police abuse their common law powers related to ldquopublic
order policingrdquo they are accountable to a multiplicity of authorities and the rule of law
most particularly the Charter The legal rights outlined in the Charter such as ldquothe
principles of fundamental justicerdquo77 security ldquoagainst unreasonable search and seizurerdquo78
and ldquothe right not to be arbitrarily detained or imprisonedrdquo79 are described very
generally However they were chosen deliberately as it was recognized that in each case
there is an inherent tension between imposing security measures and fundamental rights
and freedoms Determining which is paramount will be based on the facts of each case
76 Ibid p 9177 Canadian Charter of Rights and Freedoms s 7 Part I of the Constitution Act 1982 being Schedule B to the Canada Act 1982 (UK) 1982 c 1178 Ibid s 879 Ibid s 9
35
SECTION 5 LEGAL ANALYSIS OF THE PUBLIC WORKS PROTECTION ACT
A Legal Analysis of the Legislation
Many stakeholders have questioned the constitutional validity of the PWPA and O Reg
23310 The Ontario Ombudsman seriously questioned whether O Reg 23310 could
pass ldquoconstitutional musterrdquo80 The CCLA suggested that the broad police powers
granted under the PWPA were inconsistent with the Charter81
To the same effect were comments made by Premier Dalton McGuinty who described
the PWPA as ldquoan archaic law that was used to undermine Torontoniansrsquo civil rights
during the G20rdquo82 He elaborated83
The issue is whether itrsquos appropriate given our present-day values and given an old law which I am confident doesnrsquot strike the balance that you and I would want today in terms of public safety and individual freedom of expressionhellipWhen you start talking about civil rights individual freedoms yoursquore talking about those things that in fact define us as a free and democratic societyhellipItrsquos something that is real and meaningful and important to all of us
The Terms of Reference for this Review do not require that I conduct a constitutional
analysis of the PWPA I have however been asked to consider areas for reform and if
appropriate make specific recommendations for amendment or repeal This does require
that I therefore consider whether the legislation may be vulnerable to constitutional
challenge
Section 2(b) of the Charter guarantees everyone the fundamental freedom of expression
The definition of ldquoexpressionrdquo has been interpreted broadly ldquoActivity is expressive if it
80 Supra note 32 at para 23381 Supra note 26 p 982 Robert Benzie and Rob Ferguson ldquoMcGuinty shifts focus to fixing G20 lawrdquo Toronto Star (10 December 2010) online thestarcom lthttpwwwthestarcomnewscanadaarticle905436--mcguinty-shifts-focus-to-fixing-g20-lawgt 83 Ibid
36
attempts to convey meaningrdquo84 While freedom of expression is not absolute there is
very little that is not considered expression However expression that advocates violence
is not protected under s 2(b)85
The Supreme Court of Canada in Committee for the Commonwealth of Canada v
Canada held that s 2(b) ldquodoes not encompass the right to use any and all government
property for purposes of disseminating onersquos views on public matters but I have no doubt
that it does include the right to use for that purpose streets and parks which are dedicated
to the use of the public subject no doubt to reasonable regulation to ensure their
continued use for the purposes to which they are dedicatedrdquo86 It seems clear that
protesting in public streets is a form of expression protected by s 2(b) Protesting at an
intergovernmental conference is clearly expressive in nature
In challenges alleging that a statute contravenes s 2(b) of the Charter a court would
examine whether the purpose or effect of a law contravenes section 2(b)87 There is no
reason to suggest that the purpose of the PWPA was to infringe the freedom of
expression The purpose of the PWPA is to protect important public infrastructures A
court would then have to consider whether the effect of the PWPA may have resulted in
an infringement of freedom of expression
O Reg 23310 defined significant portions of downtown Toronto as a ldquopublic workrdquo
Section 3(c) of the PWPA allows peace officers to refuse entry into public works which
therefore limits the areas in which protesters could express themselves By creating the
84 Irwin Toy Ltd v Queacutebec (Attorney General) [1989] 1 SCR 927 at 96885 Ibid at 97086 [1991] 1 SCR 139 at 165-16687 Peter Hogg Constitutional Law of Canada loose-leaf (consulted on 7 January 2011) 5th ed (Toronto Thomson Reuters Canada Limited 2007) at 43-6
37
relatively large security perimeter designated by the regulation individuals may allege
they were not permitted to communicate directly with those they were protesting against
Furthermore individuals could not communicate in public places such as public streets
where the right to freedom of expression has previously been found to exist88
Commissioner Ted Hughes completed an interim report following a public hearing into
the complaints regarding events that took place with respect to the Asia Pacific Economic
Cooperation (APEC) Conference in Vancouver British Columbia in November 1997
Commissioner Hughes recommended that generous opportunity should be afforded to
peaceful protesters to be seen in their protest activities by guests at the event89
Section 7 of the Charter provides that ldquoEveryone has the right to life liberty and security
of the person and the right not to be deprived thereof except in accordance with the
principles of fundamental justicerdquo The PWPA raises issues regarding the liberty and
security of the person in providing for warrantless searches and stopping for
identification Furthermore vague laws offend two fundamental values of our legal
system90 Firstly individuals are not provided with sufficient guidance as to what
behaviour a law prohibits Secondly those in charge of enforcing the law are not
provided with clear guidance as to how to enforce it A vague law can lead to inconsistent
and arbitrary enforcement91
88 Supra note 86 89 Canada Commission for Public Complaints Against the RCMP APEC ndash Commission Interim Report (31 July 2001) at s 3111 (Commissioner Ted Hughes QC) online Commission for Public Complaints Against the RCMP lthttpwwwcpc-cppgccaprrrepphrapecapec-31-engaspxgt90 Supra note 87 at 47-60 91 ldquoA vague provision does not provide an adequate basis for legal debate that is for reaching a conclusion as to its meaning by reasoned analysis applying legal criteria It does not sufficiently delineate any area of risk and thus can provide neither fair notice to the citizen nor a limitation of enforcement discretion Such
38
As described by Professor Hogg92
The requirement that any limit on rights be prescribed by law reflects two values that are basic to constitutionalism or the rule of law First in order to preclude arbitrary and discriminatory action by government officials all official action in derogation of rights must be authorized by law Secondly citizens must have reasonable opportunity to know what is prohibited so that they can act accordingly Both these values are satisfied by a law that fulfils two requirements (1) the law must be adequately accessible to the public and (2) the law must be formulated with sufficient precision to enable people to regulate their conduct by it and to provide guidance to those who apply the law
As I stated earlier the phrase ldquoany approach theretordquo contained in s 3(a) of the PWPA is
potentially vague No criteria are provided to assist in determining when one is on ldquoany
approach theretordquo A phrase such as ldquoany approach theretordquo is subject to many potential
interpretations It is arguable that this language does not provide reasonable guidance for
individuals to obey the law and for the law to be consistently enforced
Section 8 of the Charter provides that ldquoEveryone has the right to be secure against
unreasonable search or seizurerdquo A warrantless search or seizure is only reasonable if the
search was authorized by law the law itself is reasonable and the manner in which the
search carried out was reasonable93 The fact that no reasonable or probable suspicions
are needed to carry out a search pursuant to s 3(b) of the PWPA raises some issues The
only prerequisite to such a search is that the person or vehicle being subjected to a search
is entering or attempting to enter a public work
a provision is not intelligible to use the terminology of previous decisions of this Court and therefore it fails to give sufficient indications that could fuel a legal debaterdquo (R v Nova Scotia Pharmaceutical Society [1992] 2 SCR 606 at 639-640) 92 Supra note 87 at 38-1293 R v Nolet [2010] SCJ No 24 at para 21
39
Whether the PWPArsquos s 3(b) authority to undertake warrantless searches is ldquoreasonablerdquo
depends on the reasonableness of the impact on the subject of the search ldquoThe
individuals reasonable expectation of privacy must of course be balanced against the
public interest in effective law enforcementrdquo94 It is harder to justify a warrantless search
where the reasonable expectation of privacy is higher For example interference with
bodily integrity will raise the standard of reasonableness Conversely in situations where
people expect to have a lower level of privacy the standard to prove reasonableness is
lower
One rightfully has some expectation of privacy when in public but it does not rise to the
level of privacy that one expects in onersquos home The expectation of privacy further
decreases when one attempts to enter a ldquopublic workrdquo especially in the context of a
secured barrier to an intergovernmental conference
Section 9 of the Charter provides that ldquoEveryone has the right not to be arbitrarily
detained or imprisonedrdquo95 Under s 3(a) of the PWPA a person entering or attempting to
enter or approach a public work must provide his or her name and address and state the
purpose for which he or she desires to enter the public work In order for a guard or
peace officer to carry out this duty the guard or peace officer may ldquostoprdquo the person from
further approaching or entering the public work and the person is not permitted under the
statute to decide not to enter By so doing it is arguable the guard or peace officer has
assumed control over the movement of the individual by a demand or direction The
94 R v Rao [1984] OJ No 3180 at para 79 (CA)95 ldquoDetention under s 9hellipof the Charter refers to a suspension of the individualrsquos liberty interest by a significant physical or psychological restraint Psychological detention is established either where the individual has a legal obligation to comply with the restrictive request or demand or a reasonable person would conclude by reason of the state conduct that he or she had no choice but to complyrdquo (R v Grant [2009] SCJ No 32 at para 44)
40
PWPA provides for a significant legal consequence if the demand or direction is not
followed since ldquoEvery person who neglects or refuses to comply with a request or
direction made under this Act by a guard or peace officer and every person found upon a
public work or any approach thereto without lawful authority the proof whereof lies on
him or her is guilty of an offence and on conviction is liable to a fine of not more than
$500 or to imprisonment for a term of not more than two months or to bothrdquo96
Pursuant to s 3(b) of the PWPA a guard or peace officer may search any person entering
or attempting to enter a public work These searches would necessitate the detention of a
person If a guard or peace officer performs such a search he or she has taken control
over the movement of the person by a demand or direction The same serious legal
consequence results from failing to obey this demand or direction as that which results
from failing to obey the demand or direction pursuant to s 3(a) of the PWPA As a
result ldquodetentionsrdquo could occur pursuant to both s 3(a) and s 3(b) of the PWPA
The question that would need to be addressed in any challenge to the PWPA is whether
the detentions permitted by the PWPA are arbitrary in nature The use of the term ldquoany
approach theretordquo is vague and imprecise A person could be deemed to be on ldquoany
approach theretordquo a great distance from the entrance of a public work and their detention
might very well be arbitrary In addition the fact that the guards and peace officers
determine the boundaries of the ldquoapproachesrdquo which cannot be contested seems
arbitrary as well as who they chose to search
96 It should be noted that not all communications with state authorities and police officers will amount to a detention The question is whether a person may reasonably believe that he or she is free to refuse to comply
41
Section 11(d) of the Charter provides that ldquoAny person charged with an offence has the
right to be presumed innocent until proven guilty according to law in a fair and public
hearing by an independent and impartial tribunalrdquo This requires that the Crown have the
burden of proving the guilt of an individual charged with an offence97 Provisions that
place the burden on the accused to disprove on the balance of probabilities an essential
element of an offence raises s 11(d) concerns because convictions would be possible
even if reasonable doubt existed98 The presumption of innocence is not only infringed
upon by a requirement that an accused disprove an essential element of an offence but
also any requirement on an accused to prove a fact on the balance of probabilities to
avoid conviction
Section 5(1) of the PWPA states that ldquoEvery person who neglects or refuses to comply
with a request or direction made under this Act by a guard or peace officer and every
person found upon a public work or any approach thereto without lawful authority the
proof whereof lies on him or her is guilty of an offence and on conviction is liable to a
fine of not more than $500 or to imprisonment for a term of not more than two months or
to bothrdquo For the offence of being found upon a public work or on any approach to a
public work without lawful authority the burden of proof has been ldquoshiftedrdquo from the
Crown to the accused to prove lawful authority
As the foregoing analysis reveals there are certainly many concerns that arise when one
places the PWPA under the lens of the Charter However the rights and freedoms
provided by the Charter are not absolute They are ldquosubject only to such reasonable
97 R v Oakes [1986] 1 SCR 10398 Ibid at 132
42
limits prescribed by law as can be demonstrably justified in a free and democratic
societyrdquo99
In assessing whether a law which infringes the Charter is saved by s 1 a court examines
both the object of the law and the measures taken to achieve that objective A lawrsquos
objective achieves the status of being sufficiently important to justify overriding a
Charter right only when it is consistent with the values of a free and democratic society
The objective must relate to pressing and substantial concerns and not concerns that are
trivial and must be focussed on ldquothe realization of collective goals of fundamental
importancerdquo100 The measures adopted must be ldquorationally connectedrdquo to the objective of
the law101 The measures ldquoshould impair lsquoas little as possiblersquo the right or freedom in
questionrdquo102 Furthermore there must be ldquoa proportionality between the effects of the
measures which are responsible for limiting the Charter right or freedom and the
objective which has been identified as of lsquosufficient importancersquordquo103
An issue that may affect whether the potential limitation on rights and freedoms of the
PWPA and O Reg 23310 were ldquoprescribed by lawrdquo is whether the regulation was
adequately accessible to the public The Ontario Ombudsman the CCLA and the Ontario
Bar Association (ldquoOBArdquo) all noted a lack of notice regarding O Reg 23310 and its
effects prior to and during the G20 While the text of the regulation was available prior
99 Charter s 1 The Superior Court of Quebec decision of Tremblay v Queacutebec (Attorney General) [2001] JQ No 1504 (CS) involved an interim injunction brought by an applicant who was denied entry into the secured perimeter during the 2001 Summit of the Americas in Queacutebec City The applicant sought an injunction to either eliminate the security barrier or to be given a pass to let him within the secured perimeter Even though the Court held that the erection of the security zone violated the applicantrsquos right to freedom of expression and peaceful assembly The court held that the infringement was ldquodemonstrably justified in a free and democratic societyrdquo100 Supra note 97 at 136101 Ibid at 139102 Ibid103 Ibid
43
to the G20 it was only available on a website not frequently accessed by the public
Since O Reg 23310 was not published in The Ontario Gazette until after it was
revoked it may be that the regulation was not adequately accessible to the public
Reverse onus offences have been found to be ldquorationally connectedrdquo when there is plainly
a rational connection between the proven fact and the fact to be presumed Reverse
onuses have also been upheld when the burden placed on the Crown would be virtually
impossible to meet (such as proving sanity)104 Even if the accused only has the burden
of disproving the fact that heshe did not have lawful authority to be in a public work or
on an approach thereto there may not be a rational connection between the proven fact
and the fact to be presumed
The history of threats and violence at previous intergovernmental conferences
demonstrated that the protection of G20 participants was a pressing and substantial
concern However given the broadness of the PWPA every exercise of it raises the
potential for Charter scrutiny
Recommendation
Given the public policy considerations I have raised regarding the PWPA and Charter
concerns that could arise I recommend that the PWPA be repealed after the Province has
considered potential policy and security gaps as a result of its repeal
B Other uses of the Public Works Protection Act
It appears from my consultations with stakeholder groups that if the PWPA is repealed
104 R v Chaulk [1990] 3 SCR 1303 at 1340
44
there are two areas which may require legislation to provide specific peace officer
powers These two areas are court security and the protection of nuclear power facilities
and other power generating infrastructures
1 Court Security
During my decade as Ontariorsquos Attorney General (1975 to 1985) there were three
murders in provincial courthouses as well as many threats to members of courthouse staff
and others As violent acts in courthouses can be anticipated courtroom security is often
required
Individuals are compelled to go to court for a variety of reasons such as appearing as an
accused as a witness or for jury duty To provide protection to those who work there or
are compelled to attend an adequate level of court security may require a search without
warrant of each and every individual who seeks to enter a courthouse It is not reasonable
to require prior judicial authorization for each search that takes place
The courts have considered the constitutionality of these provisions of the PWPA in
conjunction with section 137 of the Ontario Police Services Act in the context of court
security
Section 137 of the Ontario Police Services Act imposes a responsibility on municipal
police services boards to secure the premises where court proceedings are conducted and
includes
1 Ensuring the security of judges and of persons taking part in or attending proceedings
45
2 During the hours when judges and members of the public are normally present ensuring the security of the premises
3 Ensuring the secure custody of persons in custody who are on or about the premises including persons taken into custody at proceedings
4 Determining appropriate levels of security for the purposes of paragraphs 1 2 and 3
In R v Campanella105 Ms Campanella was attending the John Sopinka Courthouse in
Hamilton At the courthouse there were signs posted stating that those who entered
would be searched for weapons When Ms Campanellarsquos bag was searched marijuana
was found and she was charged with the possession of marijuana She argued that her s
8 Charter protection against unreasonable search and seizure had been violated and the
marijuana discovered during the search should therefore be excluded as evidence The
trial judge and the summary convictions appeal court rejected the section 8 Charter
argument and the appellant appealed to the Ontario Court of Appeal
The Ontario Court of Appeal agreed that ldquogiven the importance of the government
objective and the context in which these searches take place it is reasonable to authorize
warrantless searches of those entering courthouse facilitiesrdquo106 The Court stated ldquothe
only effective way to diminish the risk in a large courthouse is to subject everyone
without prior security clearance to some kind of inspection I can see no other feasible
means of achieving the aimrdquo107
The Court also pointed out the concern relating to the erosion of the benefits and
105 [2002] OJ No 5104 (SCJ) affrsquod [2005] OJ No 1345 (CA) [ldquoCampanellardquo]106 R v Campanella [2005] OJ No 1345 at para 17 (CA)107 Ibid at para 19
46
protections conferred by s 8 of the Charter108
I am sensitive to the concern that we should not erode the benefits and protections of s 8 by gradually sanctioning ever-greater intrusions into privacy because of unfounded fears We should not lightly accept that searches in public places are justified solely because people have become used to them and expect them However the record in this case establishes the justification for the kinds of searches carried out in this case
Ultimately the appeal was dismissed and s 137 of the Police Services Act and s 3(b) of
the PWPA) were held to comply with s 8 of the Charter109
In its consultations with me the OBA similarly stated that the existing nature of court
security is necessary and is generally ldquowell toleratedrdquo At the same time however it
submits that the security regime should not be ldquoshoehornedrdquo into the PWPA regime and
that it would be preferable to provide a legislative framework tailored for the specific
security requirements While the PWPA has been relied upon as support for the exercise
of powers by the police in providing court security the OBA submits that the PWPArsquos
ldquosingle security schemerdquo which declares something a ldquopublic workrdquo is an ldquoawkward
blunt instrument in a world where more specialized tools are necessaryrdquo When
warrantless searches are being done on a routine basis it is advisable to have specific
legislation providing peace officers with such power
Recommendation
Court security legislation is currently in place in many jurisdictions across Canada and
contain provisions that permit warrantless searches of persons wanting to access a
108 Ibid at para 25109 The Court in R v SS [2005] OJ No 5002 (SCJ) agreed with the findings and rationale of the Court of Appeal in Campanella
47
courthouse The constitutional validity of such legislation in Manitoba was upheld by that
provincersquos highest court110
Given the ongoing need for warrantless searches at courthouses the Province of Ontario
should consider specific court security legislation in Ontario to support the security
measures in our courthouses if the PWPA is to be repealed taking into consideration the
responsibilities of the municipal police services boards provided in s 137 of the Police
Services Act This legislation should only be passed after proper notice consultation and
legislative debate
2 Power Generating Infrastructures
It is clear from the submissions that I received from representatives of OPG and the
Canadian Nuclear Safety Commission (ldquoCNSCrdquo) that the PWPA currently plays a role in
providing security officers with the powers to secure power generating infrastructures
including the ability to carry firearms and the ability to stop and require identification
from those in proximity to those nuclear plants
Security is of the utmost importance in protecting a nuclear power plant Members of the
public do not need to access a nuclear or similar power facility unless employed at the
facility or carrying out work for the facility111
The security of areas within nuclear power plants is governed by the Nuclear Security
110 R v Lindsay [2004] MJ No 380 (CA) 111 Though the discussion focuses on nuclear power plants I have been informed that other power generating infrastructures use the PWPA to designate their security officers as guards As a result if the PWPA is repealed it will be necessary to broaden the consultations in relation to these other power generating infrastructures
48
Regulations112 Every nuclear power plant must be located within a ldquoprotected areardquo113
This protected area is the area within a fenced perimeter which is alarmed and
continually patrolled This area must be equipped with devices that employ two
independent systems to detect intrusion into the area114 The Nuclear Security
Regulations also provide detailed specifications for the barrier which must enclose the
protected area115 In addition licensees must ldquoidentify all vital areas and implement
physical protection measures ndash including access control and measures designed to delay
unauthorized accessrdquo116
The Nuclear Security Regulations also provide detailed provisions regarding entry into
protected areas No person can ldquoenter a protected area without physical proof of the
recorded authorization of the licenseerdquo117 Further to this on entry into a protected area
ldquothat personrsquos identity shall be verified by two separate personnel identity verification
systems one of which is an access card reader and the other of which is a biometric
personnel identity verification devicerdquo118 Licensees must also ldquoensure that vehicle
portals are used for the entry and exit of land vehicles into and from a protected areardquo119
Physical protection measures are also required to reduce the chance of a forced land
vehicle entry into a protected area120
The power to conduct searches upon entry to a protected area is also provided by the
112 SOR2000-209 113 Ibid s 8114 Ibid s 11(a)(i)115 Ibid s 9116 Ibid s 141117 Ibid s 17(1)118 Ibid s 171119 Ibid s 91(1)120 Ibid s 91(4)
49
Nuclear Security Regulations Signs must be posted that are visible to people about to
enter the protected area stating that they must allow a nuclear security officer (ldquoNSOrdquo) to
ldquosearch them and everything in their possession including any land vehicle for weapons
and explosive substancesrdquo121 In addition when leaving the protected area people must
allow NSOs to ldquosearch them and everything in their possession including any land
vehicle for Category I II or III nuclear materialrdquo122 People are not permitted to enter or
leave a protected area unless these searches are carried out123 The Nuclear Security
Regulations provide for the method of search including ldquoa hand-held scanner a walk-
through scanner or any similar devicerdquo124 In addition if an NSO determines it
necessary a frisk search can be carried out by a person of the same sex125
I have been informed that the area outside of but adjacent to the ldquoprotected areardquo is
referred to as the ldquocontrolled areardquo This area includes roadways and waterways within
the nuclear facilityrsquos property boundaries adjacent to or in close proximity to the nuclear
power plantrsquos protected area and may be generally accessible to the public
As a result of the September 11 2001 terrorist attacks the Nuclear Security Regulations
were amended to require that high security nuclear facilities maintain an on-site armed
Nuclear Response Force (ldquoNRFrdquo)126 The NRF is composed of specialized NSOs
Section 32 of the Nuclear Security Regulations requires the NRF to be capable of making
an effective intervention taking into account the threat
121 Ibid s 27(1)(a)122 Ibid s 27(1)(b)123 Ibid s 27(2)124 Ibid s 27(5)(a)125 Ibid s 27(5)(b)126 Ibid s 32
50
Members of the NRF are mandated by the Nuclear Security Regulations to be ldquotrained in
the use of firearms authorized to carry firearms in Canada and qualified to use themrdquo127
However to satisfy this requirement the NRF resorts to the PWPA since the federal
regulations do not authorize the NRF to carry firearms without a licence However
under s 2(1) of the PWPA NSOs are designated as ldquoguardsrdquo with the powers of a peace
officer most significantly to carry and use firearms without having to be licensed128
Such a designation also enables the OPG to acquire and dispose of firearms
In the consultations I had with the OPG and the CNSC they advised me that NSOs
receive training equivalent to Canadian police standards and that NRF officers receive
training equivalent to federal and provincial police tactical team requirements
Another aspect of the PWPA used to secure nuclear power plants relates to powers
exercised by NSOs in ldquocontrolled areasrdquo The federal regulations do not provide the
NSOs with any power to demand identification within this area However pursuant to
the PWPA as appointed ldquoguardsrdquo the NSOs have the power to demand identity
verification in the controlled area They also have the authority to arrest anyone who
obstructs NSOs in the performance of their duties under the PWPA
In addition to using the PWPA to secure the controlled areas I have been advised by the
OPG that NSOs use powers pursuant to the PWPA to secure areas within 100 metres of a
nuclear facilityrsquos property line immediately adjacent to the controlled area These powers
are exercised under the broad language of the PWPA regarding ldquoapproaches to public
127 Ibid s 1 (on-site nuclear response force definition)128 Section 11707 of the Criminal Code exempts peace officers from licensing requirements for possessing firearms and other prohibited and restricted weapons
51
worksrdquo This is an illustration of the problem with the vagueness of this language in the
legislation As these powers are exercised on public land they could be challenged as a
potential infringement on individual rights and freedoms However I have been advised
that there have been no such incidents to date The need to ensure the security of these
facilities must be taken into the balance
NSOs must be able to monitor and control access to the controlled areas and areas close
to a nuclear power plantrsquos property line This provides for a more secure perimeter
around these facilities They need authority to challenge individuals acting in a suspicious
manner or conducting surveillance of nuclear facilities The OPG has informed me that
areas outside a nuclear facilityrsquos property line immediately adjacent to the controlled
area are still close enough to take advantage of the short distance to conduct intelligence
using high-powered surveillance equipment These nuclear power plants are not located
on isolated islands and are therefore vulnerable Both the Pickering Nuclear Generating
Station and the Darlington Nuclear Generating Station operate within major urban areas
being 30 km and 60 km east of downtown Toronto respectively I am advised that
previous events such as ldquoThe Toronto 18rdquo129 have shown that those intent on targeting
vital infrastructure such as power generating facilities often use reconnaissance and
intelligence gathering as precursor tactics
Recommendation
If the PWPA is to be repealed it is imperative that those who secure our nuclear and
power generating facilities be given the requisite specific legislative powers to do so
129 See for example ldquoLast 2 Toronto 18 accused found guiltyrdquo CBC News (23 June 2010) online cbcca lthttpwwwcbccanewscanadatorontostory20100623toronto-18-verdicthtmlgt
52
The source for these powers should be set out in the federal Nuclear Security
Regulations However if this is not a desired option the Government of Ontario must
consider specific legislation setting out the specific powers required to properly secure
these facilities and the specific location in which these powers can be exercised Such
legislation should not be passed without proper notice consultation and legislative
debate
53
SECTION 6 CONCLUSION
The PWPA was enacted in 1939 to support the war effort At the time the protection of
Ontariorsquos hydroelectric facilities from sabotage was of particular concern Since then the
PWPA has been used to provide the legal foundation for the powers exercised by the
police in providing court security and even more recently by the OPG in securing
nuclear power facilities In June 2010 the PWPA was used to provide powers to secure
intergovernmental conferences The vagueness of the PWPA permits it to be used in
situations when it is arguably not necessary and potentially abusive In my view the
PWPA has been used for purposes beyond its original intent
The time for the PWPA seems to have passed If the Government of Ontario enacts as I
have suggested specific legislation to provide for courthouse security and power
generating infrastructure security it would appear that there is no longer a need for the
PWPA I am also mindful of the existence of counter-terrorism and emergencies
legislation to deal with these situations as they arise
ldquoIn determining the boundaries of police powers caution is required to ensure the proper
balance between preventing excessive intrusions on an individualrsquos liberty and privacy
and enabling the police to do what is reasonably necessary to perform their duties in
protecting the publicrdquo130 The overly broad and vague language of the PWPA does not
strike this required balance with individual rights and freedoms
The late Justice Jackson of the United States Supreme Court stated that every
emergency power once conferred ldquolies about like a loaded weapon ready for the hand of
130 R v Clayton [2007] 2 SCR 725 at 742
54
any authority that can bring forward a plausible claim of an urgent needrdquo131 The need to
protect the public must be balanced with the requirement to preserve fundamental rights
and freedoms
Yet at the same time ldquoCanadians are entitled to demand the best public order policing
possible from their governmentrdquo132 There is no question that we live in a different world
post 911 We live in difficult times with constant threats both domestically and from
abroad The police clearly need to be given adequate powers to carry out their duties
The police use their expertise on a daily basis to assess the powers they require In
instances when they take action that exceeds their powers their actions are examined by
various mandated bodies This process I believe results in the proper balance between
police powers and individual rights and freedoms Therefore any legislation that purports
to grant special police powers must be specific and direct and developed in consultation
with stakeholders and tested through thorough debate in our transparent democratic
system
131 Korematsu v United States 323 US 214 (1944)132 Supra note 26 p 8
55
other than those already conferred by virtue of common law and statute (excluding the
PWPA) in order to secure the interdiction zones for the Summits
On May 12 2010 Chief William Blair of the TPS wrote to the Honourable Rick
Bartolucci Minister of Community Safety and Correctional Services11 stating that a
ldquocornerstonerdquo of the TPS security plan for the G20 Summit would be the establishment of
a security perimeter in an area around the Metro Toronto Convention Centre The
purpose of this security perimeter as explained in the letter was to ldquoensure the safety and
security of those attending the Summit the Summit site itself and people and property
within the area close to the Summit siterdquo Chief Blair indicated that the TPS would rely
upon the authority granted to it pursuant to the common law and if certain conditions are
met the FMIOA12 to establish and control the security perimeter However he believed
that the provisions of the PWPA ldquowould also offer legal support for the extraordinary
security measuresrdquo he believed would be necessary Chief Blair therefore requested ldquothe
Lieutenant Governor in Council to designate the area of or highways within the intended
security perimeter as a public work for the period from June 21 2010 through the end of
the Summit on June 27 2010rdquo A detailed description of the area requested to be
designated as a public work was provided to Minister Bartolucci as well as an aerial
photograph of the area
I am not aware that any organization publicly questioned the inherent police power to
erect fences defining the interdiction zone The Canadian Civil Liberties Association
11 See Appendix 312 This probably is in reference to s 101(4) of the FMIOA which provides the authority for the Minister of Public Safety and Emergency Preparedness to enter into arrangements with the government of a province concerning the responsibilities of members of the RCMP and members of the provincial and municipal police forces with respect to ensuring the security for the proper functioning of an intergovernmental conference
11
(ldquoCCLArdquo) published a document entitled ldquoProtecting civil liberties and human rights at
the G20 statement of concernsrdquo on May 21 201013 In this document the CCLA
expressed concern with the size of the security perimeter ldquoParticularly where there is a
primary fence to ensure safety around conference venues and delegate hotels any further
restrictions on mobility or protest must be fully and carefully justifiedrdquo14 However the
CCLA supported ldquothe overall goal of ensuring that the G20 is conducted in a manner that
is safe for delegates protesters and Toronto residents in generalrdquo15 and noted the
RCMPrsquos authority under the FMIOA There was no doubt expressed by the CCLA
concerning the power of police to erect security fences
By letter dated June 15 201016 Minister Bartolucci wrote to Chief Blair acknowledging
the request and stating in part
I agree that there are various sources of legal authority to support the security perimeter I also recognize the desirability of having additional sources of legal authority to ensure clarity regarding the ability of the Toronto Police Service to take the steps that it will be taking Accordingly I am pleased to inform you that a regulation has been made under the PWPA in response to your request
The Minister informed Chief Blair that O Reg 23310 had been filed with the Registrar
of Regulations and would come into force on June 21 2010 and would be revoked as of
June 28 2010 The area requested by Chief Blair to be designated as a ldquopublic workrdquo
was so designated in O Reg 23310
13 Canadian Civil Liberties Association Protecting civil liberties and human rights at the G20 statement of concerns May 21 2010 online Canadian Civil Liberties Association lthttpcclaorgwordpresswp-contentuploads201005G20-CCLA-Statement-of-Concernspdfgt14 Ibid p 415 Ibid p 316 Attached as Appendix 8 is a copy of the June 15 2010 letter
12
Four days earlier on June 11 2010 Mike McDonell the Assistant Commissioner of the
RCMP sent a letter to Chief Blair17 containing a thorough review of the statutory sources
of the RCMPrsquos duties and powers to secure intergovernmental conferences Assistant
Commissioner McDonell outlined the police authority to fully secure the G8 and G20
Summits
More specifically in relation to the Summits the RCMP will be taking measures to fulfill duties related to the protection of Internationally Protected Persons (IPPrsquos) that befall police in general and the RCMP in specific The official visit of the head of state or high ranking dignitary of a foreign country is an event that frequently engenders a real or apprehended threat to the preservation of peace which demands the adoption of proper and reasonable security measures in and by the host country
Furthermore Canada is a signatory of the United Nations Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons Including Diplomatic Agents In that regard Canada has specifically adopted laws requiring peace officers to protect IPPs as defined in section 2 of the Criminal Code in accordance with its international obligationshellip
Legal authorities also permit the RCMP to collaborate with other police forces such as the OPP in the fulfillment of its duties including in relation to securing the perimeter Such collaboration is essential in light of concurrent mandates of policing partners particularly in relation to the legal duties to preserve the peace and protect life and property
E O Reg 23310
On June 2 2010 Cabinetrsquos Legislation and Regulations Committee passed O Reg
23310 It was signed by the Lieutenant Governor on June 3 2010 and published on June
16 2010 on e-Laws a website maintained by the Government of Ontario not frequently
accessed by the public This website provides access to official copies of Ontariorsquos
statutes and regulations O Reg 23310 came into force on June 21 2010 and was
17 Attached as Appendix 9 is a copy of the June 11 2010 letter
13
revoked on June 28 2010 It was not published in The Ontario Gazette18 until July 3
2010 after it had already been revoked Section 23(2) of Ontariorsquos Legislation Act
200619 provides that a regulation is not effective against a person before the earliest of
when the person has actual notice of it the last instant on the day on which it is published
on the e-Laws website or the last instant of the day on which it is published in the print
version of The Ontario Gazette As a result though the technical requirements for
providing notice of O Reg 23310 were met I have concerns whether adequate notice
was given to the public especially in light of the fact that the regulation was not
published in The Ontario Gazette until it had already been revoked
The regulation set out the area where the security fence was to be erected and designated
that area as a ldquopublic workrdquo which then called into play all the powers provided by the
PWPA
ONTARIO REGULATION 23310
made under the
PUBLIC WORKS PROTECTION ACT
Made June 2 2010Filed June 14 2010
Published on e-Laws June 16 2010Printed in The Ontario Gazette July 3 2010
DESIGNATION OF PUBLIC WORKS
Designation 1 The following are designated as public works for the purposes of the Act 1 Everything described in clause (a) of the definition of ldquopublic workrdquo in section
1 of the Act that is located in the area described in Schedule 1 including without limitation and for greater certainty every sidewalk in that area
2 The places described in paragraphs 1 2 and 3 of Schedule 2
18 The Ontario Gazette contains Ontariorsquos legal notices and regulations19 SO 2006 c 21 Sched F
14
Revocation 2 This Regulation is revoked on June 28 2010
Commencement 3 This Regulation comes into force on the later of June 21 2010 and the day
it is filed SCHEDULE 1
AREA REFERRED TO IN PARAGRAPH 1 OF SECTION 1
The area in the City of Toronto lying within a line drawn as follows
Beginning at the curb at the southeast corner of Blue Jays Way and Front Street West then north to the centre of Front Street West then east along the centre of Front Street West to the east curb of Windsor Street then north along the east curb of Windsor Street to the centre of Wellington Street then east along the centre of Wellington Street to the centre of Bay Street then south along the centre of Bay Street to a point directly opposite the north wall of Union Station then west along the exterior of the north wall of Union Station to the centre of York Street then south along the centre of York Street continuing east of the abutments under the railway overpass and continuing south along the centre of York Street to the centre of Bremner Boulevard then west along the centre of Bremner Boulevard to the east curb of Lower Simcoe Street then south along the east curb of Lower Simcoe Street to the north curb of Lake Shore Boulevard West then west along the north curb of Lake Shore Boulevard West to the south end of the walkway that is located immediately west of the John Street Pumping Station and runs between Lake Shore Boulevard West and the bus parking lot of the Rogers Centre then north along the west edge of that walkway to the bus parking lot of the Rogers Centre then west along the south edge of the bus parking lot of the Rogers Centre to the west edge of the driveway running between the parking lot and Bremner Boulevard then north along the west edge of that driveway to the north curb of Bremner Boulevard then west along the north curb of Bremner Boulevard to the east curb of Navy Wharf Court then north along the east curb of Navy Wharf Court to the southwest point of the building known as 73 Navy Wharf Court then east along the exterior of the south wall of that building then north along the exterior of the east wall of that building to the curb of Blue Jays Way then north along the east curb of Blue Jays Way to the curb at the southeast corner of Blue Jays Way and Front Street West
SCHEDULE 2DESIGNATED PLACES REFERRED TO IN PARAGRAPH 2 OF SECTION 1
1 The area within the area described in Schedule 1 that is within five metres of a line drawn as follows Beginning at the south end of the walkway that is located immediately west of the John Street Pumping Station and runs between Lake Shore Boulevard West and the bus parking lot of the Rogers Centre then north along the west edge of that walkway to the bus parking lot of the Rogers Centre then west along the south edge of the bus parking lot of the Rogers Centre to the west edge of the driveway running between the parking lot and Bremner
15
Boulevard then north along the west edge of that driveway and ending at Bremner Boulevard
2 The area within the area described in Schedule 1 that is within five metres of a line drawn as follows
Beginning at the southwest point of the building known as 73 Navy Wharf Court then east along the exterior of the south wall of that building then north along the exterior of the east wall of that building and ending at the curb of Blue Jays Way
3 The below-grade driveway located between Union Station and Front Street West and running between Bay Street and York Street in the City of Toronto
F Information Given to Public Regarding Security Protocol
Attempts were made to inform the public about the security measures that would be in
place leading up to and throughout the G20 The City of Toronto in consultation with
the ISU produced an information article20 and flyers21 No mention is made in the article
or flyers of the PWPA or O Reg 23310 and the powers given to the police The City of
Toronto also prepared an advertisement which appeared in local newspapers22 The
original version of the advertisement made no reference to the fact that people would be
subject to a search when attempting to access the security perimeter although reference
was made to the requirement to show identification and to have a valid purpose for
entering the restricted area A later version of the advertisement included additional text
advising that anyone requesting access to the security perimeter may be subject to a
search However just as with the article and flyers no specific mention was made of the
PWPA or O Reg 23310
20 A million copies of the newsletter Our Toronto which contained an article entitled ldquoWhat to expect during the G20 ndash June 26 amp 27 2010rdquo were delivered to homes in the City of Toronto21 Approximately 10000 flyers were sent to homes and businesses within the affected area The flyercontained general information about security and the anticipated effects on traffic22 The advertisement appeared in the Toronto Star Toronto Sun and Metroland community papers
16
In the days leading up to and throughout the G20 Summit there was apparently a
misunderstanding on the part of the police regarding a purported ldquofive-metre rulerdquo This
confusion likely emanated from the ldquofive-metresrdquo referenced in Schedule 2 of O Reg
23310 However the purpose of Schedule 2 was to designate as ldquopublic work(s)rdquo three
specific private property locations on which the security fence was to be erected that were
not ldquopublic worksrdquo The remainder of the fence was on public sidewalks and streets
which are ldquopublic worksrdquo To ensure that the fence was located on a ldquopublic workrdquo the
drafters designated the area within five metres of the security fence in these three
locations as a ldquopublic workrdquo23 Unfortunately the wording of Schedule 2 was very
cumbersome and the relationship between the area defined in Schedule 1 and the five-
metre reference in Schedule 2 was difficult to understand
Because of this confusion unfortunately the message was conveyed that the regulation
provided for a five-metres zone outside the entire security fence and that therefore the
PWPA applied to this entire area24 The media reported during the G20 summit that the
police had ldquosweepingrdquo powers pursuant to the PWPA within five-metres outside of the
exterior security fence25 O Reg 23310 did not provide the police such authority
23 Attached as Appendix 10 is a copy of a map showing the three specific areas designated in Schedule 2 of O Reg 2331024 Jennifer Yang ldquoJust being near the G20 security zone can get you arrestedrdquo Toronto Star (25 June 2010) online thestarcom lthttpwwwthestarcomnewsgtatorontog20summitarticle828498--just-being-near-the-g20-security-zone-can-get-you-arrestedgt25 David Rider et al ldquoDalton McGuinty Bill Blair defend quiet boost in arrest powersrdquo Toronto Star (26 June 2010) online thestarcom lthttpwwwthestarcomnewsgtatorontog20summitarticle828974--dalton-mcguinty-bill-blair-defend-quiet-boost-in-arrest-powersgt
17
SECTION 3 COMMENTARY
A Public Policy Considerations
There are some overarching public policy considerations which affect the issues I have
been asked to address in the Terms of Reference
As stated earlier the legislation was the product of emergency World War II concerns
related to the possibility of enemy sabotage of important infrastructures The legislative
debates in September of 1939 were particularly concerned with the provincersquos
hydroelectric facilities However notwithstanding these apparently specific concerns
when drafted the definition of ldquopublic workrdquo is extraordinarily broad and from a policy
standpoint raises questions of overbreadth especially given the ability to designate
almost anything a public work In a mere definition section s 1 of the legislation allows
the Lieutenant Governor in Council to designate ldquoany other building place or workrdquo as a
ldquopublic workrdquo However taken to its logical conclusion an entire city or more could be
designated as a ldquopublic workrdquo The definition of ldquopublic workrdquo includes ldquoany provincial
and any municipal public buildingrdquo but ldquopublic buildingrdquo is not further defined thereby
creating an element of uncertainty as to the specific provincial and municipal buildings
captured by this definition While perhaps extreme measures in times of war require
flexibility in all other circumstances legislation of this nature requires limitations and a
more specialized approach
The expression ldquoprivate armyrdquo was used in the Ontario legislative debate in 1939
Theoretically at least private armies could be created through the use of the ldquoguardrdquo
appointing authority by the many individuals who are authorized to appoint guards
pursuant to the PWPA This authority was apparently in response to the Federal
18
Governmentrsquos refusal to assume through the Defence Department the responsibility of
guarding utilities and industries essential to the war effort While such a result might not
have been contemplated in a parliamentary democracy it is clearly unwise to leave such
a possibility open
Section 3 of the PWPA provides in part that a guard or a peace officer
(a) may require any person entering or attempting to enter any public work or any approach thereto to furnish his or her name and addresshellipand to state the purpose for which he or she desires to enter the public work in writing or otherwise
The primary problem I see with this section is the vagueness of the term ldquoapproach
theretordquo An approach could begin at a considerable distance from the public work
Section 6(b) also provides for the making of regulations ldquodefining the areas that
constitute approaches to public works either generally or with regard to a particular
public workrdquo
In addition s 3(b) of the PWPA provides that a guard or peace officer ldquomay search
without warrant any person entering or attempting to enter a public workrdquo This section
does not permit any person to abandon any attempt to enter a public work in order to
avoid being subjected to a warrantless search Such conduct is adopted by persons who
decide not to enter a secured courthouse in order to avoid a warrantless search
Section 4 provides that for the purposes of the PWPA the statement under oath made by
persons engaged in the operation of a public work ldquoas to the boundaries of the public
work is conclusive evidence thereofrdquo Section 4 should be considered with s 5(1) which
provides that ldquoevery person found upon a public work or any approach thereto without
lawful authority the proof whereof lies on him or her is guilty of an offencehellip(emphasis
19
added)rdquo The provision in s 4 that ldquothe statement under oathhellipis conclusive evidence
thereofrdquo appears to remove from a courtrsquos consideration what could be a legitimate
dispute as to the boundaries of a public work or the approach thereto Furthermore the
apparent reversal of the onus of proof regarding lawful authority to be found in a public
work or an approach found in s 5 is also troublesome from a policy and legal point of
view
Accordingly if utilized to the extreme many government officials could appoint many
private armies to restrict access to many (in fact any) public places where the mere
statement under oath by the private guard of the boundaries of the areas under restricted
access is conclusive proof thereof Such potential for abuse is beyond troubling to say
the least
B Review of other Public Reports
As is evident from the foregoing discussion many issues arise regarding the operation of
the PWPA in todayrsquos context These considerations and others also formed the basis of
concerns raised in public reports which I was asked to review
1 Reports of the Canadian Civil Liberties Association
The CCLA preliminary G20 report26 dealt with most of the police related events that
occurred in Toronto during the G20 conference during the weekend of June 26th and 27th
2010 I will only make reference to a few portions of the report that deal with the Terms
of Reference
26 Canadian Civil Liberties Association A Breach of the Peace ndash A Preliminary Report of Observations During the 2010 G20 Summit June 29 2010 online Canadian Civil Liberties Association lthttpcclaorgwordpresswp-contentuploads201006CCLA-Report-A-Breach-of-the-Peace-Preliminary-report-updated-July-8pdfgt
20
The report of the CCLA called for the repeal or significant amendment to the PWPA ldquoto
meet basic constitutional standardsrdquo27 The CCLA ldquosuggests that the broad police powers
granted under the Act are inconsistent with current Charter requirementsrdquo28
I agree with the observation of the CCLA that the provisions of the PWPA led to a ldquolack
of clarity as to the scope of the search and seizure powersrdquo29 which created many
difficulties and conflicts that probably could have been avoided I would also certainly
agree with a conclusory comment in this preliminary report that ldquoit is the duty of police
officers to act with fairness and equanimity toward all citizens in accordance with the law
of the country The presumption of innocence and the protection against arbitrary arrests
and detention are at the core of a commitment to justicerdquo30
The CCLA in partnership with the National Union of Public Employees organized
public hearings for two days in Toronto and one day in Montreal in November of 2010
which they referred to as a Citizens Inquiry The Citizens Inquiry heard from 63 members
of the public who had witnessed policing incidents or had been detained Several lawyers
and academics also participated in the hearing and offered commentary on the events of
the G20 from a legal or policing perspective including issues related to the PWPA A
report of the hearings titled ldquoG20 Toronto Breach of the Peace Public Hearingsrdquo was
released on February 28 2011 which also referred to the PWPA31
27 Ibid p 2228 Ibid p 929 Ibid p 1230 Ibid p 2131 Canadian Civil Liberties Association and the National Union of Public and General Employees G20 Toronto Breach of the Peace Public Hearings February 2011 online Canadian Civil Liberties Association lthttpcclaorgwordpresswp-contentuploads201102Breach-of-the-Peace-Final-Reportpdfgt
21
2 The Ontario Ombudsman Report
The Ontario Ombudsman commenced an investigation after receiving complaints relating
to a variety of issues concerning the G20 The Marin Report recognized that ldquotypically
international summits attract protests and protests can turn violent and even deadlyrdquo32
The report therefore does not quarrel with the requirement that a high level of security is
required for such events
The report in my view accurately describes the PWPA as ldquounique in Canada in terms of
the breadth of its reach and the powers it confershellipno other Canadian statute defining
lsquopublic worksrsquo contains provisions similar to those found in Ontariorsquos Actrdquo33
32 Ontario Ombudsman report Investigation into The Ministry of Community Safety and Correctional Servicesrsquo Conduct in Relation to Ontario Regulation 23310 under the Public Works Protection Act ldquoCaught in the Actrdquo by Andreacute Marin (Toronto Ombudsman of Ontario December 2010) online Ombudsman of Ontario lthttpwwwombudsmanoncamedia157555g20final1-enpdfgt (ldquoMarin Reportrdquo) at para 733 Ibid at para 97
22
SECTION 4 POWERS OF THE POLICE
Pursuant to the Terms of Reference I have been asked to consider for future purposes
whether the powers given to peace officers and guards under the PWPA are necessary to
protect public works secure intergovernmental conferences or for any other purposes
To answer that question it is necessary to assess whether the current common law and
statutory regime provide the police with sufficient powers to perform these vital services
A Common Law Powers and Powers Pursuant to Police Services Acts
The police have extensive common law powers that can be used in protecting and
securing intergovernmental conferences and in protecting public works It is necessary to
examine those powers in order to assess whether and what if any additional powers are
needed such as those provided by the PWPA
Of particular assistance in this regard is R v Knowlton34 where the Supreme Court of
Canada considered whether the powers possessed by peace officers at common law and
statute in securing an area for the protection of a foreign dignitary were lawful The
Supreme Court of Canada held that in order for the exercise of peace officer powers to be
lawful the powers must satisfy the two step test set out in R v Waterfield35 First the
power must be in furtherance of a lawful duty Traditional common law peace officer
duties include the preservation of the peace and the prevention of crime These common
law police duties amongst others are now statutorily enshrined in s 42(1) of Ontariorsquos
Police Services Act (and other provincial police services acts)36 The second part of the
test requires an evaluation of whether the conduct of the peace officer was ldquojustifiedrdquo To
34 [1974] SCR 443 [ldquoKnowltonrdquo]35 See for example R v Dedman [1985] 2 SCR 236 RSO 1990 c P15
23
do so one applies the standard of what is reasonably necessary in light of the totality of
the circumstances In evaluating whether the conduct of the peace officer was justified it
is important to consider ldquothe duty being performed the extent to which some interference
with individual liberty is necessary in the performance of that duty the importance of the
performance of the duty to the public good the nature of the liberty being interfered with
and the nature and extent of the interferencerdquo37
In Knowlton police in Edmonton cordoned off an area as part of the security
arrangements for the visit of Premier Kosygin of the USSR Premier Kosygin had been
assaulted in Ottawa a few days prior to his visit to Edmonton Knowlton entered the
secured area questioning the power of the peace officer to prevent his entry He was
arrested without a warrant and charged with obstructing a peace officer in the execution
of his duties Knowlton argued that the peace officer did not have the power to prevent
his entry and was not acting in the execution of his duty
The Supreme Court of Canada emphasized the heightened importance of security when
there are visiting foreign dignitaries38
It is notorious and of common knowledge that the official visit of the head of state or high rank dignitary of a foreign country friendly as either may be is an event that frequently engenders a real or apprehended threat to the preservation of peace and that calls therefore for the adoption of proper and reasonable security measures in and by the host countryhellipThe restriction of the right of free access of the public to public streetshellipwas one of the steps--not an unusual one--which police authorities considered and adopted as necessary for the attainment of the purpose aforesaid In my opinion such conduct of the police was clearly falling within the general scope of the duties imposed upon them
37 R v Mann [2004] 3 SCR 59 at 7938 Supra note 34 at 447-448
24
In addressing the first part of the Waterfield test the Court referenced provisions of the
Alberta Police Act and the Criminal Code and concluded that the conduct of the peace
officers fell within the general scope of the duties imposed upon them for example
preservation of the peace and prevention of crime39
According to the principles which for the preservation of peace and prevention of crime underlie the provisions of s 30 amongst others of the Criminal Code these official authorities were not only entitled but in duty bound as peace officers to prevent a renewal of a like criminal assault on the person of Premier Kosygin during his official visit in Canada In this respect they had a specific and binding obligation to take proper and reasonable steps The restriction of the right of free access of the public to public streets at the strategic point mentioned above was one of the steps--not an unusual one--which police authorities considered and adopted as necessary for the attainment of the purpose aforesaid In my opinion such conduct of the police was clearly falling within the general scope of the duties imposed upon them
In analyzing the second step of the Waterfield test the Court concluded that there was no
evidence indicating the police officers resorted to an unjustifiable use of the powers
associated with the duties imposed on them
The Court in Knowlton recognized broad police powers to cordon off areas as part of the
security arrangements involving internationally protected persons In addition the Court
found that the warrantless arrest in that case was not an unjustifiable or unreasonable use
of powers associated with the police duties to preserve the peace order public safety and
to enforce the law and prevent crime Finally the Court found that peace officers were
duty bound ldquoto prevent a renewal of a like criminal assault on the person of Premier
Kosygin during his official visit in Canadardquo40 Furthermore it stated the closing of public
39 Ibid 40 Ibid at 447
25
streets ldquowas one of the steps -- not an unusual one -- which police authorities considered
and adopted as necessaryrdquo41
The Knowlton decision clearly acknowledged that the police had the duty and authority to
establish and enforce a secured area to protect a foreign dignitary In order to carry out
these duties the police may do what is reasonably necessary in light of the totality of the
circumstances
Though Knowlton was decided prior to the enactment of the Canadian Charter of Rights
and Freedoms (the ldquoCharterrdquo) this does not in my view affect the clear statement by the
Supreme Court of Canada regarding the duty of the police under the common law and the
Alberta Police Act to provide this security While the facts of Knowlton were quite
compelling in relation to the obvious need to provide adequate security for Premier
Kosygin the decision is equally important authority regarding the general responsibilities
of the police at common law and statute in relation to the preservation of the peace
B Other Statutory Powers
1 Criminal Code
Some specific powers are provided to peace officers pursuant to the Criminal Code42
Section 31 gives peace officers the power to arrest an individual for breach of the peace
Peace officers can arrest those committing the breach of the peace or those who on
reasonable grounds heshe believe are about to join in or renew the breach of the peace
Peace officers also have powers at their disposal under ss 63-69 of the Criminal Code to
deal with the offences of unlawful assembly and riots
41 Ibid at 447-448 42 RSC 1985 c C-46
26
2 Trespass to Property Act
The Ontario Trespass to Property Act43 is a potential source of police power to arrest
without warrant those who are unlawfully on certain premises or who were recently
unlawfully on the premises and refuse to give their name and address44 This statute
deals with illegal entry into both private and public property by creating the offence of
trespass for those who without the express permission of the occupier enter on to
premises or engage in an activity on the premises when it is prohibited by the statute45
Though this statute is primarily used by private property owners to keep unwanted people
off of their property it has also been invoked by the Speaker of the House46 and by the
City of Toronto47 It must be noted however that using the Trespass to Property Act in
relation to removing individuals from ldquopublicrdquo places may raise Charter issues48
3 Foreign Missions and International Organizations Act
The RCMP as peace officers have the general duty to preserve the peace and prevent
crime and offences as set out in s 18 of the Royal Canadian Mounted Police Act49
Additional duties found in s 17 of the Royal Canadian Mounted Police Regulations
198850 include the protection of ldquointernationally protected personsrdquo as defined in s 2 of
the Criminal Code Internationally protected persons include heads of state and their
43 RSO 1990 c T2144 Ibid ss 9(1) 1045 Ibid s 2(1)46R v Behrens [2004] OJ No 5135 (CJ) The Court held that the issue of the trespass notices fell under the Speakerrsquos parliamentary privilege and were not reviewable even on the basis of a Charter argument47R v Semple [2004] OJ No 2137 (CJ)48 In R v Semple the defendants were charged under the Ontario Trespass to Property Act for entering the grounds of Toronto City Hall after being banned from doing so In the end the Court held that the defendantsrsquo peaceful entry onto the grounds was an expression as per s 2(b) of the Charter Torontorsquos notice under the Act infringed on this freedom and in these circumstances it could not be justified under s 1 of the Charter 49 RSC 1985 c R-1050 SOR88-361
27
family members The RCMPrsquos duty to protect internationally protected persons is also
found in s 6(1) of the Security Offences Act51
In addition Canada is a signatory of the United Nations Convention on the Prevention
and Punishment of Crimes against Internationally Protected Persons including
Diplomatic Agents52 This Convention provides that the Government of Canada must
protect visiting heads of state or government foreign ministers representatives or
officials of a state or any official or other agent of an international organization of an
intergovernmental character and the family members that accompany him or her The
RCMP has the responsibility to carry out these security measures
Pursuant to s 101(1) of the FMIOA ldquoThe Royal Canadian Mounted Police has the
primary responsibility to ensure the security for the proper functioning of any
intergovernmental conference in which two or more states participate that is attended by
persons granted privileges and immunities under this Act and to which an order made or
continued under this Act appliesrdquo
The powers to carry out this mandate are found in s 101(2) of the FMIOA ldquothe Royal
Canadian Mounted Police may take appropriate measures including controlling limiting
or prohibiting access to any area to the extent and in a manner that is reasonable in the
circumstancesrdquo It is noteworthy that the FMIOA has legislated the same powers
provided to the police under common law and statute
In order to trigger the RCMP powers described in s 101 the Governor in Council on the
51 RSC 1985 c S-752 UNGA Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons including Diplomatic Agents 20 February 1977 UN Doc I-15410
28
recommendation of the Minister of Foreign Affairs and pursuant to s 5 of the FMIOA
made the G8 Summit Privileges and Immunities Order 201053 on December 10 2009
This order was repealed and a subsequent order54 was made on January 13 2010 A
similar order55 for the G20 Summit was made on March 11 201056
Therefore during the G20 the RCMP had the specific statutory power to limit or
prohibit access to any area and to any extent as long as the measures were appropriate
and done in a manner that was reasonable in the circumstances ldquoThe RCMP may secure
the perimeter of the security zone on land with fencing and restrict access to this zone
through the use of checkpoints and other measuresrdquo57
Though not invoked during the G20 s 101(4) of the FMIOA provides that arrangements
can be entered into with a province concerning the responsibilities of members of the
RCMP and members of the provincial and municipal police forces with respect to
ensuring the security for the proper functioning of an intergovernmental conference No
information was provided to me as to why such an arrangement was not entered into for
the G20
These intergovernmental security provisions of the FMIOA were enacted just prior to the
G8 being held in Kananaskis Alberta in 2002 In light of violent protests at international
events and the 911 terrorist attacks in the United States the Federal Government
53 SOR2009-33654 SOR2010-1355 SOR2010-6256 Supra note 17 ldquoUpon such an Order being made the RCMP in co-operation and collaboration with other police forces becomes impressed with the primary responsibility of ensuring not only the protection of the IPPs but also ensuring lsquosecurity for the proper functioningrsquo of the intergovernmental conference To that end the FMIOA provides that the lsquoappropriate measures including controlling limiting or prohibiting access to any area to the extent and in a manner that is reasonable in the circumstancesrsquo may be takenrdquo57 Ibid
29
considered it timely ldquoto clarify in statute the present common law authority for police to
provide security and protection for high profile international eventsrdquo58 At such events it
was intended that ldquothe RCMP is the lead to make sure that security is providedrdquo59
Given that it was clearly the intention of the Federal Government to have the RCMP as
the lead police force at these international events consideration should be given to
expand the use of the FMIOA to cover all large scale international events such as the
Olympics the Pan American Games and international trade fairs as these events are
routinely attended by heads of state and senior government officials Most recently
Vancouver held the 2010 Olympic and Paralympic Winter Games60 Though federal and
municipal legislation were passed to assist in securing the Games expansion and
application of the FMIOA would have been a better approach The RCMP as the national
police force ought to be in charge pursuant to their authority under the FMIOA
4 Emergency Legislation
Through my consultations with the parties listed in Appendix 2 I heard that while we are
not in a time of war as in 1939 when the PWPA was enacted we live in an age of
international and local terrorism threats Our democratic society must be vigilant in
58 Canada House of Commons Debates 37th Parl 1st Sess No 93 (5 October 2001) at 100059 Canada House of Commons Standing Committee on Public Safety and National Security 40th Parl 3rd
Sess Evidence (25 October 2010)60 In anticipation of this event the Governor General in Council on the recommendation of the Minister of Transport pursuant to the Aeronautics Act (RSC 1985 c A-2) and the Canadian Air Transport Security Authority Act (SC 2002 c 9 s 2) passed the Vancouver 2010 Aviation Security Regulations (SOR2009-298) The purpose of the regulations was to enhance aviation security during the Games The Regulation provided for extra security and extra authorized means to conduct screenings In addition the Vancouver City Council passed the very lengthy By-law No 9962 known as the ldquoVancouver 2010 Olympic and Paralympic Winter Games By-Lawrdquo Specific security measures to be employed at a city live site (described thoroughly in a Schedule to the By-Law) that were enabled by this By-Law included The installation and monitoring of airport style and other security measures including magnetometers and X-ray machines the installation and monitoring of closed circuit television cameras the searching of any person who wished to enter on to a city live site and any bag luggage or other container carried by such person and the prohibiting of access to or removal from a city live site any person who refused to submit to a search
30
maintaining a proper level of security while recognizing that democratic values and
security issues can conflict where public order is at issue It is important to highlight that
provincial legislation exists dealing with both terrorism threats and emergency situations
I have been informed that federal and provincial counter-terrorism plans exist that
address preventing and responding to acts of terrorism
The Police Services Act regulations mandate police forces to establish procedures
consistent with federal and provincial counter-terrorism plans61 and to have policies with
respect to counter-terrorism62 In addition the Emergency Management and Civil
Protection Act allows for orders to be made in situations specifically designated an
ldquoemergencyrdquo63 by the Lieutenant Governor in Council or the Premier that regulate or
prohibit travel and movement to from or within any specified area64 Therefore the
PWPA is not needed to deal with these emergency situations as specific more recent
emergency legislation is in place for that very purpose
C Gaps in Canadian Police Powers
The Ministry of Community Safety and Correctional Services provided me with an
interesting article published in 2010 entitled ldquoThe Gap in Canadian Police Powers
61 Adequacy and Effectiveness of Police Services O Reg 399 s 2862 Ibid s 2963 Section 1 of the Emergency Management and Civil Protection Act defines an ldquoemergencyrdquo as ldquoemergencyrdquo means a situation or an impending situation that constitutes a danger of major proportions that could result in serious harm to persons or substantial damage to property and that is caused by the forces of nature a disease or other health risk an accident or an act whether intentional or otherwise (ldquosituation drsquourgencerdquo)64 RSO 1990 c E9 s 702(4)
31
Canada needs lsquoPublic Order Policingrsquo Legislationrdquo and co-authored by Wesley Pue and
Robert Diab65
This article was prompted by the debate over the cost nature and extent of security to be
employed at the Vancouver 2010 Winter Olympics The authors criticized the fact that
policing authorities in Canada ldquolack specific statutory authorization to take measures
commonly thought necessary to their missionrdquo66 These measures included security
fences in public areas designated protest areas restricted access to public space police
surveillance and searches without cause
The authors recognize that such powers may be necessary but note that ldquono legislature
has ever expressly conferred such powers on policing authorities outside the context of
international intergovernmental conferences Nor does the common law accord such
powers to state officials on its ownrdquo67 I respectfully disagree with this latter statement
It is my view the police have powers pursuant to the common law and statute as I have
discussed in the preceding section
The authors referred to R v Knowlton68 which I have previously discussed While the
authors give Knowlton a very narrow interpretation stating that ldquoits binding principle is a
good deal narrower than the words taken out of context might suggestrdquo69 I however am
of the view that the decision supports the proposition that police have a broad range of
65 Wesley Pue and Robert Diab ldquoThe Gap In Canadian Police Powers Canada Needs lsquoPublic Order Policingrsquo Legislationrdquo (2010) 28 Windsor Rev Legal Soc Issues 87 Wesley Pue is a professor of legal history at the University of British Columbia and Robert Diab is a PhD candidate at the UBC Faculty of Law66 Ibid p 8867 Ibid68 Supra note 3469 Supra note 65 p 92
32
responsibilities with deep historical roots in the common law and codified in statute a
position shared by the Federal Government when it introduced amendments to the
FMIOA The actions of the police in Knowlton were necessarily incidental to their
common law police duties and powers
The authors conclude that this ldquoauthority of police to create zones of exclusion either as
an incident of the general and ancient duties of constableshelliphas never been established in
the courtsrdquo70 I am of the view however that the role of the police in establishing
security zones relating to a crime a serious accident or other emergency is a routine and
well-accepted use of police powers pursuant to their common law and statutory duties I
am not suggesting that this common law authority permits the police to establish security
zones ldquofor the proper functioning of any intergovernmental conference in which two or
more states participaterdquo71 larger than necessary to fulfill their purpose The FMIOA as
amended in 2002 provides the RCMP with ldquoprimary responsibility to ensure the security
for the proper functioning of the intergovernmental conferencerdquo72 It is interesting
however that when the Federal Government was enacting this specific authority the
legislative debates indicated that the government was merely clarifying ldquoin statute the
present common law authority for police to provide security and protection for high
profile international eventsrdquo73
Security perimeters are routinely erected by police in the context of the commission of a
crime motor vehicle and other accidents as well as the Santa Claus parade and other
70 Ibid p 9671 Supra note 8 s 101(1)72 Ibid73 Supra note 58
33
parades It would in my view be quite impractical and unnecessary to legislate an
extensive code of police powers given their common law and statutory responsibilities to
generally maintain public order It is not advisable in my opinion to be prescriptive in
any way regarding what actions the police can take since they must assess what the
situation warrants while at the same time considering individual rights and freedoms
The details of any police response to an emergency must be tailored to the exigencies
related to the situation
The police clearly have common law and statutory authority to conduct warrantless
searches in specific situations (ldquoin exigent circumstancesrdquo)74 However when
warrantless searches must be carried out on a regular routine basis the police are acting
more like full time security guards and there should be specific statutory authority
provided to give such powers
I certainly accept the general proposition the authors assert that the mobility rights of
citizens should not be unreasonably or unfairly dealt with However one only need be
aware of the massive amount of construction taking place on the streets of Toronto as this
Report is being written to appreciate that it is not always reasonable to expect that ldquothe
rights of businesses homeowners and ordinary citizens to go about their routine
activities without interruptionrdquo75 will go unhindered While generally desirable it cannot
be legally guaranteed At the same time the authors do concede that ldquoimportant as they
74 Supra note 42 s 4871175 Supra note 65 p 89
34
are the rights of assembly movement and protest are not unqualified They can ndash and
should ndash be balanced against other important public needsrdquo76
In my view public policing at times requires innovation as it often benefits from
creative problem solving If police abuse their common law powers related to ldquopublic
order policingrdquo they are accountable to a multiplicity of authorities and the rule of law
most particularly the Charter The legal rights outlined in the Charter such as ldquothe
principles of fundamental justicerdquo77 security ldquoagainst unreasonable search and seizurerdquo78
and ldquothe right not to be arbitrarily detained or imprisonedrdquo79 are described very
generally However they were chosen deliberately as it was recognized that in each case
there is an inherent tension between imposing security measures and fundamental rights
and freedoms Determining which is paramount will be based on the facts of each case
76 Ibid p 9177 Canadian Charter of Rights and Freedoms s 7 Part I of the Constitution Act 1982 being Schedule B to the Canada Act 1982 (UK) 1982 c 1178 Ibid s 879 Ibid s 9
35
SECTION 5 LEGAL ANALYSIS OF THE PUBLIC WORKS PROTECTION ACT
A Legal Analysis of the Legislation
Many stakeholders have questioned the constitutional validity of the PWPA and O Reg
23310 The Ontario Ombudsman seriously questioned whether O Reg 23310 could
pass ldquoconstitutional musterrdquo80 The CCLA suggested that the broad police powers
granted under the PWPA were inconsistent with the Charter81
To the same effect were comments made by Premier Dalton McGuinty who described
the PWPA as ldquoan archaic law that was used to undermine Torontoniansrsquo civil rights
during the G20rdquo82 He elaborated83
The issue is whether itrsquos appropriate given our present-day values and given an old law which I am confident doesnrsquot strike the balance that you and I would want today in terms of public safety and individual freedom of expressionhellipWhen you start talking about civil rights individual freedoms yoursquore talking about those things that in fact define us as a free and democratic societyhellipItrsquos something that is real and meaningful and important to all of us
The Terms of Reference for this Review do not require that I conduct a constitutional
analysis of the PWPA I have however been asked to consider areas for reform and if
appropriate make specific recommendations for amendment or repeal This does require
that I therefore consider whether the legislation may be vulnerable to constitutional
challenge
Section 2(b) of the Charter guarantees everyone the fundamental freedom of expression
The definition of ldquoexpressionrdquo has been interpreted broadly ldquoActivity is expressive if it
80 Supra note 32 at para 23381 Supra note 26 p 982 Robert Benzie and Rob Ferguson ldquoMcGuinty shifts focus to fixing G20 lawrdquo Toronto Star (10 December 2010) online thestarcom lthttpwwwthestarcomnewscanadaarticle905436--mcguinty-shifts-focus-to-fixing-g20-lawgt 83 Ibid
36
attempts to convey meaningrdquo84 While freedom of expression is not absolute there is
very little that is not considered expression However expression that advocates violence
is not protected under s 2(b)85
The Supreme Court of Canada in Committee for the Commonwealth of Canada v
Canada held that s 2(b) ldquodoes not encompass the right to use any and all government
property for purposes of disseminating onersquos views on public matters but I have no doubt
that it does include the right to use for that purpose streets and parks which are dedicated
to the use of the public subject no doubt to reasonable regulation to ensure their
continued use for the purposes to which they are dedicatedrdquo86 It seems clear that
protesting in public streets is a form of expression protected by s 2(b) Protesting at an
intergovernmental conference is clearly expressive in nature
In challenges alleging that a statute contravenes s 2(b) of the Charter a court would
examine whether the purpose or effect of a law contravenes section 2(b)87 There is no
reason to suggest that the purpose of the PWPA was to infringe the freedom of
expression The purpose of the PWPA is to protect important public infrastructures A
court would then have to consider whether the effect of the PWPA may have resulted in
an infringement of freedom of expression
O Reg 23310 defined significant portions of downtown Toronto as a ldquopublic workrdquo
Section 3(c) of the PWPA allows peace officers to refuse entry into public works which
therefore limits the areas in which protesters could express themselves By creating the
84 Irwin Toy Ltd v Queacutebec (Attorney General) [1989] 1 SCR 927 at 96885 Ibid at 97086 [1991] 1 SCR 139 at 165-16687 Peter Hogg Constitutional Law of Canada loose-leaf (consulted on 7 January 2011) 5th ed (Toronto Thomson Reuters Canada Limited 2007) at 43-6
37
relatively large security perimeter designated by the regulation individuals may allege
they were not permitted to communicate directly with those they were protesting against
Furthermore individuals could not communicate in public places such as public streets
where the right to freedom of expression has previously been found to exist88
Commissioner Ted Hughes completed an interim report following a public hearing into
the complaints regarding events that took place with respect to the Asia Pacific Economic
Cooperation (APEC) Conference in Vancouver British Columbia in November 1997
Commissioner Hughes recommended that generous opportunity should be afforded to
peaceful protesters to be seen in their protest activities by guests at the event89
Section 7 of the Charter provides that ldquoEveryone has the right to life liberty and security
of the person and the right not to be deprived thereof except in accordance with the
principles of fundamental justicerdquo The PWPA raises issues regarding the liberty and
security of the person in providing for warrantless searches and stopping for
identification Furthermore vague laws offend two fundamental values of our legal
system90 Firstly individuals are not provided with sufficient guidance as to what
behaviour a law prohibits Secondly those in charge of enforcing the law are not
provided with clear guidance as to how to enforce it A vague law can lead to inconsistent
and arbitrary enforcement91
88 Supra note 86 89 Canada Commission for Public Complaints Against the RCMP APEC ndash Commission Interim Report (31 July 2001) at s 3111 (Commissioner Ted Hughes QC) online Commission for Public Complaints Against the RCMP lthttpwwwcpc-cppgccaprrrepphrapecapec-31-engaspxgt90 Supra note 87 at 47-60 91 ldquoA vague provision does not provide an adequate basis for legal debate that is for reaching a conclusion as to its meaning by reasoned analysis applying legal criteria It does not sufficiently delineate any area of risk and thus can provide neither fair notice to the citizen nor a limitation of enforcement discretion Such
38
As described by Professor Hogg92
The requirement that any limit on rights be prescribed by law reflects two values that are basic to constitutionalism or the rule of law First in order to preclude arbitrary and discriminatory action by government officials all official action in derogation of rights must be authorized by law Secondly citizens must have reasonable opportunity to know what is prohibited so that they can act accordingly Both these values are satisfied by a law that fulfils two requirements (1) the law must be adequately accessible to the public and (2) the law must be formulated with sufficient precision to enable people to regulate their conduct by it and to provide guidance to those who apply the law
As I stated earlier the phrase ldquoany approach theretordquo contained in s 3(a) of the PWPA is
potentially vague No criteria are provided to assist in determining when one is on ldquoany
approach theretordquo A phrase such as ldquoany approach theretordquo is subject to many potential
interpretations It is arguable that this language does not provide reasonable guidance for
individuals to obey the law and for the law to be consistently enforced
Section 8 of the Charter provides that ldquoEveryone has the right to be secure against
unreasonable search or seizurerdquo A warrantless search or seizure is only reasonable if the
search was authorized by law the law itself is reasonable and the manner in which the
search carried out was reasonable93 The fact that no reasonable or probable suspicions
are needed to carry out a search pursuant to s 3(b) of the PWPA raises some issues The
only prerequisite to such a search is that the person or vehicle being subjected to a search
is entering or attempting to enter a public work
a provision is not intelligible to use the terminology of previous decisions of this Court and therefore it fails to give sufficient indications that could fuel a legal debaterdquo (R v Nova Scotia Pharmaceutical Society [1992] 2 SCR 606 at 639-640) 92 Supra note 87 at 38-1293 R v Nolet [2010] SCJ No 24 at para 21
39
Whether the PWPArsquos s 3(b) authority to undertake warrantless searches is ldquoreasonablerdquo
depends on the reasonableness of the impact on the subject of the search ldquoThe
individuals reasonable expectation of privacy must of course be balanced against the
public interest in effective law enforcementrdquo94 It is harder to justify a warrantless search
where the reasonable expectation of privacy is higher For example interference with
bodily integrity will raise the standard of reasonableness Conversely in situations where
people expect to have a lower level of privacy the standard to prove reasonableness is
lower
One rightfully has some expectation of privacy when in public but it does not rise to the
level of privacy that one expects in onersquos home The expectation of privacy further
decreases when one attempts to enter a ldquopublic workrdquo especially in the context of a
secured barrier to an intergovernmental conference
Section 9 of the Charter provides that ldquoEveryone has the right not to be arbitrarily
detained or imprisonedrdquo95 Under s 3(a) of the PWPA a person entering or attempting to
enter or approach a public work must provide his or her name and address and state the
purpose for which he or she desires to enter the public work In order for a guard or
peace officer to carry out this duty the guard or peace officer may ldquostoprdquo the person from
further approaching or entering the public work and the person is not permitted under the
statute to decide not to enter By so doing it is arguable the guard or peace officer has
assumed control over the movement of the individual by a demand or direction The
94 R v Rao [1984] OJ No 3180 at para 79 (CA)95 ldquoDetention under s 9hellipof the Charter refers to a suspension of the individualrsquos liberty interest by a significant physical or psychological restraint Psychological detention is established either where the individual has a legal obligation to comply with the restrictive request or demand or a reasonable person would conclude by reason of the state conduct that he or she had no choice but to complyrdquo (R v Grant [2009] SCJ No 32 at para 44)
40
PWPA provides for a significant legal consequence if the demand or direction is not
followed since ldquoEvery person who neglects or refuses to comply with a request or
direction made under this Act by a guard or peace officer and every person found upon a
public work or any approach thereto without lawful authority the proof whereof lies on
him or her is guilty of an offence and on conviction is liable to a fine of not more than
$500 or to imprisonment for a term of not more than two months or to bothrdquo96
Pursuant to s 3(b) of the PWPA a guard or peace officer may search any person entering
or attempting to enter a public work These searches would necessitate the detention of a
person If a guard or peace officer performs such a search he or she has taken control
over the movement of the person by a demand or direction The same serious legal
consequence results from failing to obey this demand or direction as that which results
from failing to obey the demand or direction pursuant to s 3(a) of the PWPA As a
result ldquodetentionsrdquo could occur pursuant to both s 3(a) and s 3(b) of the PWPA
The question that would need to be addressed in any challenge to the PWPA is whether
the detentions permitted by the PWPA are arbitrary in nature The use of the term ldquoany
approach theretordquo is vague and imprecise A person could be deemed to be on ldquoany
approach theretordquo a great distance from the entrance of a public work and their detention
might very well be arbitrary In addition the fact that the guards and peace officers
determine the boundaries of the ldquoapproachesrdquo which cannot be contested seems
arbitrary as well as who they chose to search
96 It should be noted that not all communications with state authorities and police officers will amount to a detention The question is whether a person may reasonably believe that he or she is free to refuse to comply
41
Section 11(d) of the Charter provides that ldquoAny person charged with an offence has the
right to be presumed innocent until proven guilty according to law in a fair and public
hearing by an independent and impartial tribunalrdquo This requires that the Crown have the
burden of proving the guilt of an individual charged with an offence97 Provisions that
place the burden on the accused to disprove on the balance of probabilities an essential
element of an offence raises s 11(d) concerns because convictions would be possible
even if reasonable doubt existed98 The presumption of innocence is not only infringed
upon by a requirement that an accused disprove an essential element of an offence but
also any requirement on an accused to prove a fact on the balance of probabilities to
avoid conviction
Section 5(1) of the PWPA states that ldquoEvery person who neglects or refuses to comply
with a request or direction made under this Act by a guard or peace officer and every
person found upon a public work or any approach thereto without lawful authority the
proof whereof lies on him or her is guilty of an offence and on conviction is liable to a
fine of not more than $500 or to imprisonment for a term of not more than two months or
to bothrdquo For the offence of being found upon a public work or on any approach to a
public work without lawful authority the burden of proof has been ldquoshiftedrdquo from the
Crown to the accused to prove lawful authority
As the foregoing analysis reveals there are certainly many concerns that arise when one
places the PWPA under the lens of the Charter However the rights and freedoms
provided by the Charter are not absolute They are ldquosubject only to such reasonable
97 R v Oakes [1986] 1 SCR 10398 Ibid at 132
42
limits prescribed by law as can be demonstrably justified in a free and democratic
societyrdquo99
In assessing whether a law which infringes the Charter is saved by s 1 a court examines
both the object of the law and the measures taken to achieve that objective A lawrsquos
objective achieves the status of being sufficiently important to justify overriding a
Charter right only when it is consistent with the values of a free and democratic society
The objective must relate to pressing and substantial concerns and not concerns that are
trivial and must be focussed on ldquothe realization of collective goals of fundamental
importancerdquo100 The measures adopted must be ldquorationally connectedrdquo to the objective of
the law101 The measures ldquoshould impair lsquoas little as possiblersquo the right or freedom in
questionrdquo102 Furthermore there must be ldquoa proportionality between the effects of the
measures which are responsible for limiting the Charter right or freedom and the
objective which has been identified as of lsquosufficient importancersquordquo103
An issue that may affect whether the potential limitation on rights and freedoms of the
PWPA and O Reg 23310 were ldquoprescribed by lawrdquo is whether the regulation was
adequately accessible to the public The Ontario Ombudsman the CCLA and the Ontario
Bar Association (ldquoOBArdquo) all noted a lack of notice regarding O Reg 23310 and its
effects prior to and during the G20 While the text of the regulation was available prior
99 Charter s 1 The Superior Court of Quebec decision of Tremblay v Queacutebec (Attorney General) [2001] JQ No 1504 (CS) involved an interim injunction brought by an applicant who was denied entry into the secured perimeter during the 2001 Summit of the Americas in Queacutebec City The applicant sought an injunction to either eliminate the security barrier or to be given a pass to let him within the secured perimeter Even though the Court held that the erection of the security zone violated the applicantrsquos right to freedom of expression and peaceful assembly The court held that the infringement was ldquodemonstrably justified in a free and democratic societyrdquo100 Supra note 97 at 136101 Ibid at 139102 Ibid103 Ibid
43
to the G20 it was only available on a website not frequently accessed by the public
Since O Reg 23310 was not published in The Ontario Gazette until after it was
revoked it may be that the regulation was not adequately accessible to the public
Reverse onus offences have been found to be ldquorationally connectedrdquo when there is plainly
a rational connection between the proven fact and the fact to be presumed Reverse
onuses have also been upheld when the burden placed on the Crown would be virtually
impossible to meet (such as proving sanity)104 Even if the accused only has the burden
of disproving the fact that heshe did not have lawful authority to be in a public work or
on an approach thereto there may not be a rational connection between the proven fact
and the fact to be presumed
The history of threats and violence at previous intergovernmental conferences
demonstrated that the protection of G20 participants was a pressing and substantial
concern However given the broadness of the PWPA every exercise of it raises the
potential for Charter scrutiny
Recommendation
Given the public policy considerations I have raised regarding the PWPA and Charter
concerns that could arise I recommend that the PWPA be repealed after the Province has
considered potential policy and security gaps as a result of its repeal
B Other uses of the Public Works Protection Act
It appears from my consultations with stakeholder groups that if the PWPA is repealed
104 R v Chaulk [1990] 3 SCR 1303 at 1340
44
there are two areas which may require legislation to provide specific peace officer
powers These two areas are court security and the protection of nuclear power facilities
and other power generating infrastructures
1 Court Security
During my decade as Ontariorsquos Attorney General (1975 to 1985) there were three
murders in provincial courthouses as well as many threats to members of courthouse staff
and others As violent acts in courthouses can be anticipated courtroom security is often
required
Individuals are compelled to go to court for a variety of reasons such as appearing as an
accused as a witness or for jury duty To provide protection to those who work there or
are compelled to attend an adequate level of court security may require a search without
warrant of each and every individual who seeks to enter a courthouse It is not reasonable
to require prior judicial authorization for each search that takes place
The courts have considered the constitutionality of these provisions of the PWPA in
conjunction with section 137 of the Ontario Police Services Act in the context of court
security
Section 137 of the Ontario Police Services Act imposes a responsibility on municipal
police services boards to secure the premises where court proceedings are conducted and
includes
1 Ensuring the security of judges and of persons taking part in or attending proceedings
45
2 During the hours when judges and members of the public are normally present ensuring the security of the premises
3 Ensuring the secure custody of persons in custody who are on or about the premises including persons taken into custody at proceedings
4 Determining appropriate levels of security for the purposes of paragraphs 1 2 and 3
In R v Campanella105 Ms Campanella was attending the John Sopinka Courthouse in
Hamilton At the courthouse there were signs posted stating that those who entered
would be searched for weapons When Ms Campanellarsquos bag was searched marijuana
was found and she was charged with the possession of marijuana She argued that her s
8 Charter protection against unreasonable search and seizure had been violated and the
marijuana discovered during the search should therefore be excluded as evidence The
trial judge and the summary convictions appeal court rejected the section 8 Charter
argument and the appellant appealed to the Ontario Court of Appeal
The Ontario Court of Appeal agreed that ldquogiven the importance of the government
objective and the context in which these searches take place it is reasonable to authorize
warrantless searches of those entering courthouse facilitiesrdquo106 The Court stated ldquothe
only effective way to diminish the risk in a large courthouse is to subject everyone
without prior security clearance to some kind of inspection I can see no other feasible
means of achieving the aimrdquo107
The Court also pointed out the concern relating to the erosion of the benefits and
105 [2002] OJ No 5104 (SCJ) affrsquod [2005] OJ No 1345 (CA) [ldquoCampanellardquo]106 R v Campanella [2005] OJ No 1345 at para 17 (CA)107 Ibid at para 19
46
protections conferred by s 8 of the Charter108
I am sensitive to the concern that we should not erode the benefits and protections of s 8 by gradually sanctioning ever-greater intrusions into privacy because of unfounded fears We should not lightly accept that searches in public places are justified solely because people have become used to them and expect them However the record in this case establishes the justification for the kinds of searches carried out in this case
Ultimately the appeal was dismissed and s 137 of the Police Services Act and s 3(b) of
the PWPA) were held to comply with s 8 of the Charter109
In its consultations with me the OBA similarly stated that the existing nature of court
security is necessary and is generally ldquowell toleratedrdquo At the same time however it
submits that the security regime should not be ldquoshoehornedrdquo into the PWPA regime and
that it would be preferable to provide a legislative framework tailored for the specific
security requirements While the PWPA has been relied upon as support for the exercise
of powers by the police in providing court security the OBA submits that the PWPArsquos
ldquosingle security schemerdquo which declares something a ldquopublic workrdquo is an ldquoawkward
blunt instrument in a world where more specialized tools are necessaryrdquo When
warrantless searches are being done on a routine basis it is advisable to have specific
legislation providing peace officers with such power
Recommendation
Court security legislation is currently in place in many jurisdictions across Canada and
contain provisions that permit warrantless searches of persons wanting to access a
108 Ibid at para 25109 The Court in R v SS [2005] OJ No 5002 (SCJ) agreed with the findings and rationale of the Court of Appeal in Campanella
47
courthouse The constitutional validity of such legislation in Manitoba was upheld by that
provincersquos highest court110
Given the ongoing need for warrantless searches at courthouses the Province of Ontario
should consider specific court security legislation in Ontario to support the security
measures in our courthouses if the PWPA is to be repealed taking into consideration the
responsibilities of the municipal police services boards provided in s 137 of the Police
Services Act This legislation should only be passed after proper notice consultation and
legislative debate
2 Power Generating Infrastructures
It is clear from the submissions that I received from representatives of OPG and the
Canadian Nuclear Safety Commission (ldquoCNSCrdquo) that the PWPA currently plays a role in
providing security officers with the powers to secure power generating infrastructures
including the ability to carry firearms and the ability to stop and require identification
from those in proximity to those nuclear plants
Security is of the utmost importance in protecting a nuclear power plant Members of the
public do not need to access a nuclear or similar power facility unless employed at the
facility or carrying out work for the facility111
The security of areas within nuclear power plants is governed by the Nuclear Security
110 R v Lindsay [2004] MJ No 380 (CA) 111 Though the discussion focuses on nuclear power plants I have been informed that other power generating infrastructures use the PWPA to designate their security officers as guards As a result if the PWPA is repealed it will be necessary to broaden the consultations in relation to these other power generating infrastructures
48
Regulations112 Every nuclear power plant must be located within a ldquoprotected areardquo113
This protected area is the area within a fenced perimeter which is alarmed and
continually patrolled This area must be equipped with devices that employ two
independent systems to detect intrusion into the area114 The Nuclear Security
Regulations also provide detailed specifications for the barrier which must enclose the
protected area115 In addition licensees must ldquoidentify all vital areas and implement
physical protection measures ndash including access control and measures designed to delay
unauthorized accessrdquo116
The Nuclear Security Regulations also provide detailed provisions regarding entry into
protected areas No person can ldquoenter a protected area without physical proof of the
recorded authorization of the licenseerdquo117 Further to this on entry into a protected area
ldquothat personrsquos identity shall be verified by two separate personnel identity verification
systems one of which is an access card reader and the other of which is a biometric
personnel identity verification devicerdquo118 Licensees must also ldquoensure that vehicle
portals are used for the entry and exit of land vehicles into and from a protected areardquo119
Physical protection measures are also required to reduce the chance of a forced land
vehicle entry into a protected area120
The power to conduct searches upon entry to a protected area is also provided by the
112 SOR2000-209 113 Ibid s 8114 Ibid s 11(a)(i)115 Ibid s 9116 Ibid s 141117 Ibid s 17(1)118 Ibid s 171119 Ibid s 91(1)120 Ibid s 91(4)
49
Nuclear Security Regulations Signs must be posted that are visible to people about to
enter the protected area stating that they must allow a nuclear security officer (ldquoNSOrdquo) to
ldquosearch them and everything in their possession including any land vehicle for weapons
and explosive substancesrdquo121 In addition when leaving the protected area people must
allow NSOs to ldquosearch them and everything in their possession including any land
vehicle for Category I II or III nuclear materialrdquo122 People are not permitted to enter or
leave a protected area unless these searches are carried out123 The Nuclear Security
Regulations provide for the method of search including ldquoa hand-held scanner a walk-
through scanner or any similar devicerdquo124 In addition if an NSO determines it
necessary a frisk search can be carried out by a person of the same sex125
I have been informed that the area outside of but adjacent to the ldquoprotected areardquo is
referred to as the ldquocontrolled areardquo This area includes roadways and waterways within
the nuclear facilityrsquos property boundaries adjacent to or in close proximity to the nuclear
power plantrsquos protected area and may be generally accessible to the public
As a result of the September 11 2001 terrorist attacks the Nuclear Security Regulations
were amended to require that high security nuclear facilities maintain an on-site armed
Nuclear Response Force (ldquoNRFrdquo)126 The NRF is composed of specialized NSOs
Section 32 of the Nuclear Security Regulations requires the NRF to be capable of making
an effective intervention taking into account the threat
121 Ibid s 27(1)(a)122 Ibid s 27(1)(b)123 Ibid s 27(2)124 Ibid s 27(5)(a)125 Ibid s 27(5)(b)126 Ibid s 32
50
Members of the NRF are mandated by the Nuclear Security Regulations to be ldquotrained in
the use of firearms authorized to carry firearms in Canada and qualified to use themrdquo127
However to satisfy this requirement the NRF resorts to the PWPA since the federal
regulations do not authorize the NRF to carry firearms without a licence However
under s 2(1) of the PWPA NSOs are designated as ldquoguardsrdquo with the powers of a peace
officer most significantly to carry and use firearms without having to be licensed128
Such a designation also enables the OPG to acquire and dispose of firearms
In the consultations I had with the OPG and the CNSC they advised me that NSOs
receive training equivalent to Canadian police standards and that NRF officers receive
training equivalent to federal and provincial police tactical team requirements
Another aspect of the PWPA used to secure nuclear power plants relates to powers
exercised by NSOs in ldquocontrolled areasrdquo The federal regulations do not provide the
NSOs with any power to demand identification within this area However pursuant to
the PWPA as appointed ldquoguardsrdquo the NSOs have the power to demand identity
verification in the controlled area They also have the authority to arrest anyone who
obstructs NSOs in the performance of their duties under the PWPA
In addition to using the PWPA to secure the controlled areas I have been advised by the
OPG that NSOs use powers pursuant to the PWPA to secure areas within 100 metres of a
nuclear facilityrsquos property line immediately adjacent to the controlled area These powers
are exercised under the broad language of the PWPA regarding ldquoapproaches to public
127 Ibid s 1 (on-site nuclear response force definition)128 Section 11707 of the Criminal Code exempts peace officers from licensing requirements for possessing firearms and other prohibited and restricted weapons
51
worksrdquo This is an illustration of the problem with the vagueness of this language in the
legislation As these powers are exercised on public land they could be challenged as a
potential infringement on individual rights and freedoms However I have been advised
that there have been no such incidents to date The need to ensure the security of these
facilities must be taken into the balance
NSOs must be able to monitor and control access to the controlled areas and areas close
to a nuclear power plantrsquos property line This provides for a more secure perimeter
around these facilities They need authority to challenge individuals acting in a suspicious
manner or conducting surveillance of nuclear facilities The OPG has informed me that
areas outside a nuclear facilityrsquos property line immediately adjacent to the controlled
area are still close enough to take advantage of the short distance to conduct intelligence
using high-powered surveillance equipment These nuclear power plants are not located
on isolated islands and are therefore vulnerable Both the Pickering Nuclear Generating
Station and the Darlington Nuclear Generating Station operate within major urban areas
being 30 km and 60 km east of downtown Toronto respectively I am advised that
previous events such as ldquoThe Toronto 18rdquo129 have shown that those intent on targeting
vital infrastructure such as power generating facilities often use reconnaissance and
intelligence gathering as precursor tactics
Recommendation
If the PWPA is to be repealed it is imperative that those who secure our nuclear and
power generating facilities be given the requisite specific legislative powers to do so
129 See for example ldquoLast 2 Toronto 18 accused found guiltyrdquo CBC News (23 June 2010) online cbcca lthttpwwwcbccanewscanadatorontostory20100623toronto-18-verdicthtmlgt
52
The source for these powers should be set out in the federal Nuclear Security
Regulations However if this is not a desired option the Government of Ontario must
consider specific legislation setting out the specific powers required to properly secure
these facilities and the specific location in which these powers can be exercised Such
legislation should not be passed without proper notice consultation and legislative
debate
53
SECTION 6 CONCLUSION
The PWPA was enacted in 1939 to support the war effort At the time the protection of
Ontariorsquos hydroelectric facilities from sabotage was of particular concern Since then the
PWPA has been used to provide the legal foundation for the powers exercised by the
police in providing court security and even more recently by the OPG in securing
nuclear power facilities In June 2010 the PWPA was used to provide powers to secure
intergovernmental conferences The vagueness of the PWPA permits it to be used in
situations when it is arguably not necessary and potentially abusive In my view the
PWPA has been used for purposes beyond its original intent
The time for the PWPA seems to have passed If the Government of Ontario enacts as I
have suggested specific legislation to provide for courthouse security and power
generating infrastructure security it would appear that there is no longer a need for the
PWPA I am also mindful of the existence of counter-terrorism and emergencies
legislation to deal with these situations as they arise
ldquoIn determining the boundaries of police powers caution is required to ensure the proper
balance between preventing excessive intrusions on an individualrsquos liberty and privacy
and enabling the police to do what is reasonably necessary to perform their duties in
protecting the publicrdquo130 The overly broad and vague language of the PWPA does not
strike this required balance with individual rights and freedoms
The late Justice Jackson of the United States Supreme Court stated that every
emergency power once conferred ldquolies about like a loaded weapon ready for the hand of
130 R v Clayton [2007] 2 SCR 725 at 742
54
any authority that can bring forward a plausible claim of an urgent needrdquo131 The need to
protect the public must be balanced with the requirement to preserve fundamental rights
and freedoms
Yet at the same time ldquoCanadians are entitled to demand the best public order policing
possible from their governmentrdquo132 There is no question that we live in a different world
post 911 We live in difficult times with constant threats both domestically and from
abroad The police clearly need to be given adequate powers to carry out their duties
The police use their expertise on a daily basis to assess the powers they require In
instances when they take action that exceeds their powers their actions are examined by
various mandated bodies This process I believe results in the proper balance between
police powers and individual rights and freedoms Therefore any legislation that purports
to grant special police powers must be specific and direct and developed in consultation
with stakeholders and tested through thorough debate in our transparent democratic
system
131 Korematsu v United States 323 US 214 (1944)132 Supra note 26 p 8
55
(ldquoCCLArdquo) published a document entitled ldquoProtecting civil liberties and human rights at
the G20 statement of concernsrdquo on May 21 201013 In this document the CCLA
expressed concern with the size of the security perimeter ldquoParticularly where there is a
primary fence to ensure safety around conference venues and delegate hotels any further
restrictions on mobility or protest must be fully and carefully justifiedrdquo14 However the
CCLA supported ldquothe overall goal of ensuring that the G20 is conducted in a manner that
is safe for delegates protesters and Toronto residents in generalrdquo15 and noted the
RCMPrsquos authority under the FMIOA There was no doubt expressed by the CCLA
concerning the power of police to erect security fences
By letter dated June 15 201016 Minister Bartolucci wrote to Chief Blair acknowledging
the request and stating in part
I agree that there are various sources of legal authority to support the security perimeter I also recognize the desirability of having additional sources of legal authority to ensure clarity regarding the ability of the Toronto Police Service to take the steps that it will be taking Accordingly I am pleased to inform you that a regulation has been made under the PWPA in response to your request
The Minister informed Chief Blair that O Reg 23310 had been filed with the Registrar
of Regulations and would come into force on June 21 2010 and would be revoked as of
June 28 2010 The area requested by Chief Blair to be designated as a ldquopublic workrdquo
was so designated in O Reg 23310
13 Canadian Civil Liberties Association Protecting civil liberties and human rights at the G20 statement of concerns May 21 2010 online Canadian Civil Liberties Association lthttpcclaorgwordpresswp-contentuploads201005G20-CCLA-Statement-of-Concernspdfgt14 Ibid p 415 Ibid p 316 Attached as Appendix 8 is a copy of the June 15 2010 letter
12
Four days earlier on June 11 2010 Mike McDonell the Assistant Commissioner of the
RCMP sent a letter to Chief Blair17 containing a thorough review of the statutory sources
of the RCMPrsquos duties and powers to secure intergovernmental conferences Assistant
Commissioner McDonell outlined the police authority to fully secure the G8 and G20
Summits
More specifically in relation to the Summits the RCMP will be taking measures to fulfill duties related to the protection of Internationally Protected Persons (IPPrsquos) that befall police in general and the RCMP in specific The official visit of the head of state or high ranking dignitary of a foreign country is an event that frequently engenders a real or apprehended threat to the preservation of peace which demands the adoption of proper and reasonable security measures in and by the host country
Furthermore Canada is a signatory of the United Nations Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons Including Diplomatic Agents In that regard Canada has specifically adopted laws requiring peace officers to protect IPPs as defined in section 2 of the Criminal Code in accordance with its international obligationshellip
Legal authorities also permit the RCMP to collaborate with other police forces such as the OPP in the fulfillment of its duties including in relation to securing the perimeter Such collaboration is essential in light of concurrent mandates of policing partners particularly in relation to the legal duties to preserve the peace and protect life and property
E O Reg 23310
On June 2 2010 Cabinetrsquos Legislation and Regulations Committee passed O Reg
23310 It was signed by the Lieutenant Governor on June 3 2010 and published on June
16 2010 on e-Laws a website maintained by the Government of Ontario not frequently
accessed by the public This website provides access to official copies of Ontariorsquos
statutes and regulations O Reg 23310 came into force on June 21 2010 and was
17 Attached as Appendix 9 is a copy of the June 11 2010 letter
13
revoked on June 28 2010 It was not published in The Ontario Gazette18 until July 3
2010 after it had already been revoked Section 23(2) of Ontariorsquos Legislation Act
200619 provides that a regulation is not effective against a person before the earliest of
when the person has actual notice of it the last instant on the day on which it is published
on the e-Laws website or the last instant of the day on which it is published in the print
version of The Ontario Gazette As a result though the technical requirements for
providing notice of O Reg 23310 were met I have concerns whether adequate notice
was given to the public especially in light of the fact that the regulation was not
published in The Ontario Gazette until it had already been revoked
The regulation set out the area where the security fence was to be erected and designated
that area as a ldquopublic workrdquo which then called into play all the powers provided by the
PWPA
ONTARIO REGULATION 23310
made under the
PUBLIC WORKS PROTECTION ACT
Made June 2 2010Filed June 14 2010
Published on e-Laws June 16 2010Printed in The Ontario Gazette July 3 2010
DESIGNATION OF PUBLIC WORKS
Designation 1 The following are designated as public works for the purposes of the Act 1 Everything described in clause (a) of the definition of ldquopublic workrdquo in section
1 of the Act that is located in the area described in Schedule 1 including without limitation and for greater certainty every sidewalk in that area
2 The places described in paragraphs 1 2 and 3 of Schedule 2
18 The Ontario Gazette contains Ontariorsquos legal notices and regulations19 SO 2006 c 21 Sched F
14
Revocation 2 This Regulation is revoked on June 28 2010
Commencement 3 This Regulation comes into force on the later of June 21 2010 and the day
it is filed SCHEDULE 1
AREA REFERRED TO IN PARAGRAPH 1 OF SECTION 1
The area in the City of Toronto lying within a line drawn as follows
Beginning at the curb at the southeast corner of Blue Jays Way and Front Street West then north to the centre of Front Street West then east along the centre of Front Street West to the east curb of Windsor Street then north along the east curb of Windsor Street to the centre of Wellington Street then east along the centre of Wellington Street to the centre of Bay Street then south along the centre of Bay Street to a point directly opposite the north wall of Union Station then west along the exterior of the north wall of Union Station to the centre of York Street then south along the centre of York Street continuing east of the abutments under the railway overpass and continuing south along the centre of York Street to the centre of Bremner Boulevard then west along the centre of Bremner Boulevard to the east curb of Lower Simcoe Street then south along the east curb of Lower Simcoe Street to the north curb of Lake Shore Boulevard West then west along the north curb of Lake Shore Boulevard West to the south end of the walkway that is located immediately west of the John Street Pumping Station and runs between Lake Shore Boulevard West and the bus parking lot of the Rogers Centre then north along the west edge of that walkway to the bus parking lot of the Rogers Centre then west along the south edge of the bus parking lot of the Rogers Centre to the west edge of the driveway running between the parking lot and Bremner Boulevard then north along the west edge of that driveway to the north curb of Bremner Boulevard then west along the north curb of Bremner Boulevard to the east curb of Navy Wharf Court then north along the east curb of Navy Wharf Court to the southwest point of the building known as 73 Navy Wharf Court then east along the exterior of the south wall of that building then north along the exterior of the east wall of that building to the curb of Blue Jays Way then north along the east curb of Blue Jays Way to the curb at the southeast corner of Blue Jays Way and Front Street West
SCHEDULE 2DESIGNATED PLACES REFERRED TO IN PARAGRAPH 2 OF SECTION 1
1 The area within the area described in Schedule 1 that is within five metres of a line drawn as follows Beginning at the south end of the walkway that is located immediately west of the John Street Pumping Station and runs between Lake Shore Boulevard West and the bus parking lot of the Rogers Centre then north along the west edge of that walkway to the bus parking lot of the Rogers Centre then west along the south edge of the bus parking lot of the Rogers Centre to the west edge of the driveway running between the parking lot and Bremner
15
Boulevard then north along the west edge of that driveway and ending at Bremner Boulevard
2 The area within the area described in Schedule 1 that is within five metres of a line drawn as follows
Beginning at the southwest point of the building known as 73 Navy Wharf Court then east along the exterior of the south wall of that building then north along the exterior of the east wall of that building and ending at the curb of Blue Jays Way
3 The below-grade driveway located between Union Station and Front Street West and running between Bay Street and York Street in the City of Toronto
F Information Given to Public Regarding Security Protocol
Attempts were made to inform the public about the security measures that would be in
place leading up to and throughout the G20 The City of Toronto in consultation with
the ISU produced an information article20 and flyers21 No mention is made in the article
or flyers of the PWPA or O Reg 23310 and the powers given to the police The City of
Toronto also prepared an advertisement which appeared in local newspapers22 The
original version of the advertisement made no reference to the fact that people would be
subject to a search when attempting to access the security perimeter although reference
was made to the requirement to show identification and to have a valid purpose for
entering the restricted area A later version of the advertisement included additional text
advising that anyone requesting access to the security perimeter may be subject to a
search However just as with the article and flyers no specific mention was made of the
PWPA or O Reg 23310
20 A million copies of the newsletter Our Toronto which contained an article entitled ldquoWhat to expect during the G20 ndash June 26 amp 27 2010rdquo were delivered to homes in the City of Toronto21 Approximately 10000 flyers were sent to homes and businesses within the affected area The flyercontained general information about security and the anticipated effects on traffic22 The advertisement appeared in the Toronto Star Toronto Sun and Metroland community papers
16
In the days leading up to and throughout the G20 Summit there was apparently a
misunderstanding on the part of the police regarding a purported ldquofive-metre rulerdquo This
confusion likely emanated from the ldquofive-metresrdquo referenced in Schedule 2 of O Reg
23310 However the purpose of Schedule 2 was to designate as ldquopublic work(s)rdquo three
specific private property locations on which the security fence was to be erected that were
not ldquopublic worksrdquo The remainder of the fence was on public sidewalks and streets
which are ldquopublic worksrdquo To ensure that the fence was located on a ldquopublic workrdquo the
drafters designated the area within five metres of the security fence in these three
locations as a ldquopublic workrdquo23 Unfortunately the wording of Schedule 2 was very
cumbersome and the relationship between the area defined in Schedule 1 and the five-
metre reference in Schedule 2 was difficult to understand
Because of this confusion unfortunately the message was conveyed that the regulation
provided for a five-metres zone outside the entire security fence and that therefore the
PWPA applied to this entire area24 The media reported during the G20 summit that the
police had ldquosweepingrdquo powers pursuant to the PWPA within five-metres outside of the
exterior security fence25 O Reg 23310 did not provide the police such authority
23 Attached as Appendix 10 is a copy of a map showing the three specific areas designated in Schedule 2 of O Reg 2331024 Jennifer Yang ldquoJust being near the G20 security zone can get you arrestedrdquo Toronto Star (25 June 2010) online thestarcom lthttpwwwthestarcomnewsgtatorontog20summitarticle828498--just-being-near-the-g20-security-zone-can-get-you-arrestedgt25 David Rider et al ldquoDalton McGuinty Bill Blair defend quiet boost in arrest powersrdquo Toronto Star (26 June 2010) online thestarcom lthttpwwwthestarcomnewsgtatorontog20summitarticle828974--dalton-mcguinty-bill-blair-defend-quiet-boost-in-arrest-powersgt
17
SECTION 3 COMMENTARY
A Public Policy Considerations
There are some overarching public policy considerations which affect the issues I have
been asked to address in the Terms of Reference
As stated earlier the legislation was the product of emergency World War II concerns
related to the possibility of enemy sabotage of important infrastructures The legislative
debates in September of 1939 were particularly concerned with the provincersquos
hydroelectric facilities However notwithstanding these apparently specific concerns
when drafted the definition of ldquopublic workrdquo is extraordinarily broad and from a policy
standpoint raises questions of overbreadth especially given the ability to designate
almost anything a public work In a mere definition section s 1 of the legislation allows
the Lieutenant Governor in Council to designate ldquoany other building place or workrdquo as a
ldquopublic workrdquo However taken to its logical conclusion an entire city or more could be
designated as a ldquopublic workrdquo The definition of ldquopublic workrdquo includes ldquoany provincial
and any municipal public buildingrdquo but ldquopublic buildingrdquo is not further defined thereby
creating an element of uncertainty as to the specific provincial and municipal buildings
captured by this definition While perhaps extreme measures in times of war require
flexibility in all other circumstances legislation of this nature requires limitations and a
more specialized approach
The expression ldquoprivate armyrdquo was used in the Ontario legislative debate in 1939
Theoretically at least private armies could be created through the use of the ldquoguardrdquo
appointing authority by the many individuals who are authorized to appoint guards
pursuant to the PWPA This authority was apparently in response to the Federal
18
Governmentrsquos refusal to assume through the Defence Department the responsibility of
guarding utilities and industries essential to the war effort While such a result might not
have been contemplated in a parliamentary democracy it is clearly unwise to leave such
a possibility open
Section 3 of the PWPA provides in part that a guard or a peace officer
(a) may require any person entering or attempting to enter any public work or any approach thereto to furnish his or her name and addresshellipand to state the purpose for which he or she desires to enter the public work in writing or otherwise
The primary problem I see with this section is the vagueness of the term ldquoapproach
theretordquo An approach could begin at a considerable distance from the public work
Section 6(b) also provides for the making of regulations ldquodefining the areas that
constitute approaches to public works either generally or with regard to a particular
public workrdquo
In addition s 3(b) of the PWPA provides that a guard or peace officer ldquomay search
without warrant any person entering or attempting to enter a public workrdquo This section
does not permit any person to abandon any attempt to enter a public work in order to
avoid being subjected to a warrantless search Such conduct is adopted by persons who
decide not to enter a secured courthouse in order to avoid a warrantless search
Section 4 provides that for the purposes of the PWPA the statement under oath made by
persons engaged in the operation of a public work ldquoas to the boundaries of the public
work is conclusive evidence thereofrdquo Section 4 should be considered with s 5(1) which
provides that ldquoevery person found upon a public work or any approach thereto without
lawful authority the proof whereof lies on him or her is guilty of an offencehellip(emphasis
19
added)rdquo The provision in s 4 that ldquothe statement under oathhellipis conclusive evidence
thereofrdquo appears to remove from a courtrsquos consideration what could be a legitimate
dispute as to the boundaries of a public work or the approach thereto Furthermore the
apparent reversal of the onus of proof regarding lawful authority to be found in a public
work or an approach found in s 5 is also troublesome from a policy and legal point of
view
Accordingly if utilized to the extreme many government officials could appoint many
private armies to restrict access to many (in fact any) public places where the mere
statement under oath by the private guard of the boundaries of the areas under restricted
access is conclusive proof thereof Such potential for abuse is beyond troubling to say
the least
B Review of other Public Reports
As is evident from the foregoing discussion many issues arise regarding the operation of
the PWPA in todayrsquos context These considerations and others also formed the basis of
concerns raised in public reports which I was asked to review
1 Reports of the Canadian Civil Liberties Association
The CCLA preliminary G20 report26 dealt with most of the police related events that
occurred in Toronto during the G20 conference during the weekend of June 26th and 27th
2010 I will only make reference to a few portions of the report that deal with the Terms
of Reference
26 Canadian Civil Liberties Association A Breach of the Peace ndash A Preliminary Report of Observations During the 2010 G20 Summit June 29 2010 online Canadian Civil Liberties Association lthttpcclaorgwordpresswp-contentuploads201006CCLA-Report-A-Breach-of-the-Peace-Preliminary-report-updated-July-8pdfgt
20
The report of the CCLA called for the repeal or significant amendment to the PWPA ldquoto
meet basic constitutional standardsrdquo27 The CCLA ldquosuggests that the broad police powers
granted under the Act are inconsistent with current Charter requirementsrdquo28
I agree with the observation of the CCLA that the provisions of the PWPA led to a ldquolack
of clarity as to the scope of the search and seizure powersrdquo29 which created many
difficulties and conflicts that probably could have been avoided I would also certainly
agree with a conclusory comment in this preliminary report that ldquoit is the duty of police
officers to act with fairness and equanimity toward all citizens in accordance with the law
of the country The presumption of innocence and the protection against arbitrary arrests
and detention are at the core of a commitment to justicerdquo30
The CCLA in partnership with the National Union of Public Employees organized
public hearings for two days in Toronto and one day in Montreal in November of 2010
which they referred to as a Citizens Inquiry The Citizens Inquiry heard from 63 members
of the public who had witnessed policing incidents or had been detained Several lawyers
and academics also participated in the hearing and offered commentary on the events of
the G20 from a legal or policing perspective including issues related to the PWPA A
report of the hearings titled ldquoG20 Toronto Breach of the Peace Public Hearingsrdquo was
released on February 28 2011 which also referred to the PWPA31
27 Ibid p 2228 Ibid p 929 Ibid p 1230 Ibid p 2131 Canadian Civil Liberties Association and the National Union of Public and General Employees G20 Toronto Breach of the Peace Public Hearings February 2011 online Canadian Civil Liberties Association lthttpcclaorgwordpresswp-contentuploads201102Breach-of-the-Peace-Final-Reportpdfgt
21
2 The Ontario Ombudsman Report
The Ontario Ombudsman commenced an investigation after receiving complaints relating
to a variety of issues concerning the G20 The Marin Report recognized that ldquotypically
international summits attract protests and protests can turn violent and even deadlyrdquo32
The report therefore does not quarrel with the requirement that a high level of security is
required for such events
The report in my view accurately describes the PWPA as ldquounique in Canada in terms of
the breadth of its reach and the powers it confershellipno other Canadian statute defining
lsquopublic worksrsquo contains provisions similar to those found in Ontariorsquos Actrdquo33
32 Ontario Ombudsman report Investigation into The Ministry of Community Safety and Correctional Servicesrsquo Conduct in Relation to Ontario Regulation 23310 under the Public Works Protection Act ldquoCaught in the Actrdquo by Andreacute Marin (Toronto Ombudsman of Ontario December 2010) online Ombudsman of Ontario lthttpwwwombudsmanoncamedia157555g20final1-enpdfgt (ldquoMarin Reportrdquo) at para 733 Ibid at para 97
22
SECTION 4 POWERS OF THE POLICE
Pursuant to the Terms of Reference I have been asked to consider for future purposes
whether the powers given to peace officers and guards under the PWPA are necessary to
protect public works secure intergovernmental conferences or for any other purposes
To answer that question it is necessary to assess whether the current common law and
statutory regime provide the police with sufficient powers to perform these vital services
A Common Law Powers and Powers Pursuant to Police Services Acts
The police have extensive common law powers that can be used in protecting and
securing intergovernmental conferences and in protecting public works It is necessary to
examine those powers in order to assess whether and what if any additional powers are
needed such as those provided by the PWPA
Of particular assistance in this regard is R v Knowlton34 where the Supreme Court of
Canada considered whether the powers possessed by peace officers at common law and
statute in securing an area for the protection of a foreign dignitary were lawful The
Supreme Court of Canada held that in order for the exercise of peace officer powers to be
lawful the powers must satisfy the two step test set out in R v Waterfield35 First the
power must be in furtherance of a lawful duty Traditional common law peace officer
duties include the preservation of the peace and the prevention of crime These common
law police duties amongst others are now statutorily enshrined in s 42(1) of Ontariorsquos
Police Services Act (and other provincial police services acts)36 The second part of the
test requires an evaluation of whether the conduct of the peace officer was ldquojustifiedrdquo To
34 [1974] SCR 443 [ldquoKnowltonrdquo]35 See for example R v Dedman [1985] 2 SCR 236 RSO 1990 c P15
23
do so one applies the standard of what is reasonably necessary in light of the totality of
the circumstances In evaluating whether the conduct of the peace officer was justified it
is important to consider ldquothe duty being performed the extent to which some interference
with individual liberty is necessary in the performance of that duty the importance of the
performance of the duty to the public good the nature of the liberty being interfered with
and the nature and extent of the interferencerdquo37
In Knowlton police in Edmonton cordoned off an area as part of the security
arrangements for the visit of Premier Kosygin of the USSR Premier Kosygin had been
assaulted in Ottawa a few days prior to his visit to Edmonton Knowlton entered the
secured area questioning the power of the peace officer to prevent his entry He was
arrested without a warrant and charged with obstructing a peace officer in the execution
of his duties Knowlton argued that the peace officer did not have the power to prevent
his entry and was not acting in the execution of his duty
The Supreme Court of Canada emphasized the heightened importance of security when
there are visiting foreign dignitaries38
It is notorious and of common knowledge that the official visit of the head of state or high rank dignitary of a foreign country friendly as either may be is an event that frequently engenders a real or apprehended threat to the preservation of peace and that calls therefore for the adoption of proper and reasonable security measures in and by the host countryhellipThe restriction of the right of free access of the public to public streetshellipwas one of the steps--not an unusual one--which police authorities considered and adopted as necessary for the attainment of the purpose aforesaid In my opinion such conduct of the police was clearly falling within the general scope of the duties imposed upon them
37 R v Mann [2004] 3 SCR 59 at 7938 Supra note 34 at 447-448
24
In addressing the first part of the Waterfield test the Court referenced provisions of the
Alberta Police Act and the Criminal Code and concluded that the conduct of the peace
officers fell within the general scope of the duties imposed upon them for example
preservation of the peace and prevention of crime39
According to the principles which for the preservation of peace and prevention of crime underlie the provisions of s 30 amongst others of the Criminal Code these official authorities were not only entitled but in duty bound as peace officers to prevent a renewal of a like criminal assault on the person of Premier Kosygin during his official visit in Canada In this respect they had a specific and binding obligation to take proper and reasonable steps The restriction of the right of free access of the public to public streets at the strategic point mentioned above was one of the steps--not an unusual one--which police authorities considered and adopted as necessary for the attainment of the purpose aforesaid In my opinion such conduct of the police was clearly falling within the general scope of the duties imposed upon them
In analyzing the second step of the Waterfield test the Court concluded that there was no
evidence indicating the police officers resorted to an unjustifiable use of the powers
associated with the duties imposed on them
The Court in Knowlton recognized broad police powers to cordon off areas as part of the
security arrangements involving internationally protected persons In addition the Court
found that the warrantless arrest in that case was not an unjustifiable or unreasonable use
of powers associated with the police duties to preserve the peace order public safety and
to enforce the law and prevent crime Finally the Court found that peace officers were
duty bound ldquoto prevent a renewal of a like criminal assault on the person of Premier
Kosygin during his official visit in Canadardquo40 Furthermore it stated the closing of public
39 Ibid 40 Ibid at 447
25
streets ldquowas one of the steps -- not an unusual one -- which police authorities considered
and adopted as necessaryrdquo41
The Knowlton decision clearly acknowledged that the police had the duty and authority to
establish and enforce a secured area to protect a foreign dignitary In order to carry out
these duties the police may do what is reasonably necessary in light of the totality of the
circumstances
Though Knowlton was decided prior to the enactment of the Canadian Charter of Rights
and Freedoms (the ldquoCharterrdquo) this does not in my view affect the clear statement by the
Supreme Court of Canada regarding the duty of the police under the common law and the
Alberta Police Act to provide this security While the facts of Knowlton were quite
compelling in relation to the obvious need to provide adequate security for Premier
Kosygin the decision is equally important authority regarding the general responsibilities
of the police at common law and statute in relation to the preservation of the peace
B Other Statutory Powers
1 Criminal Code
Some specific powers are provided to peace officers pursuant to the Criminal Code42
Section 31 gives peace officers the power to arrest an individual for breach of the peace
Peace officers can arrest those committing the breach of the peace or those who on
reasonable grounds heshe believe are about to join in or renew the breach of the peace
Peace officers also have powers at their disposal under ss 63-69 of the Criminal Code to
deal with the offences of unlawful assembly and riots
41 Ibid at 447-448 42 RSC 1985 c C-46
26
2 Trespass to Property Act
The Ontario Trespass to Property Act43 is a potential source of police power to arrest
without warrant those who are unlawfully on certain premises or who were recently
unlawfully on the premises and refuse to give their name and address44 This statute
deals with illegal entry into both private and public property by creating the offence of
trespass for those who without the express permission of the occupier enter on to
premises or engage in an activity on the premises when it is prohibited by the statute45
Though this statute is primarily used by private property owners to keep unwanted people
off of their property it has also been invoked by the Speaker of the House46 and by the
City of Toronto47 It must be noted however that using the Trespass to Property Act in
relation to removing individuals from ldquopublicrdquo places may raise Charter issues48
3 Foreign Missions and International Organizations Act
The RCMP as peace officers have the general duty to preserve the peace and prevent
crime and offences as set out in s 18 of the Royal Canadian Mounted Police Act49
Additional duties found in s 17 of the Royal Canadian Mounted Police Regulations
198850 include the protection of ldquointernationally protected personsrdquo as defined in s 2 of
the Criminal Code Internationally protected persons include heads of state and their
43 RSO 1990 c T2144 Ibid ss 9(1) 1045 Ibid s 2(1)46R v Behrens [2004] OJ No 5135 (CJ) The Court held that the issue of the trespass notices fell under the Speakerrsquos parliamentary privilege and were not reviewable even on the basis of a Charter argument47R v Semple [2004] OJ No 2137 (CJ)48 In R v Semple the defendants were charged under the Ontario Trespass to Property Act for entering the grounds of Toronto City Hall after being banned from doing so In the end the Court held that the defendantsrsquo peaceful entry onto the grounds was an expression as per s 2(b) of the Charter Torontorsquos notice under the Act infringed on this freedom and in these circumstances it could not be justified under s 1 of the Charter 49 RSC 1985 c R-1050 SOR88-361
27
family members The RCMPrsquos duty to protect internationally protected persons is also
found in s 6(1) of the Security Offences Act51
In addition Canada is a signatory of the United Nations Convention on the Prevention
and Punishment of Crimes against Internationally Protected Persons including
Diplomatic Agents52 This Convention provides that the Government of Canada must
protect visiting heads of state or government foreign ministers representatives or
officials of a state or any official or other agent of an international organization of an
intergovernmental character and the family members that accompany him or her The
RCMP has the responsibility to carry out these security measures
Pursuant to s 101(1) of the FMIOA ldquoThe Royal Canadian Mounted Police has the
primary responsibility to ensure the security for the proper functioning of any
intergovernmental conference in which two or more states participate that is attended by
persons granted privileges and immunities under this Act and to which an order made or
continued under this Act appliesrdquo
The powers to carry out this mandate are found in s 101(2) of the FMIOA ldquothe Royal
Canadian Mounted Police may take appropriate measures including controlling limiting
or prohibiting access to any area to the extent and in a manner that is reasonable in the
circumstancesrdquo It is noteworthy that the FMIOA has legislated the same powers
provided to the police under common law and statute
In order to trigger the RCMP powers described in s 101 the Governor in Council on the
51 RSC 1985 c S-752 UNGA Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons including Diplomatic Agents 20 February 1977 UN Doc I-15410
28
recommendation of the Minister of Foreign Affairs and pursuant to s 5 of the FMIOA
made the G8 Summit Privileges and Immunities Order 201053 on December 10 2009
This order was repealed and a subsequent order54 was made on January 13 2010 A
similar order55 for the G20 Summit was made on March 11 201056
Therefore during the G20 the RCMP had the specific statutory power to limit or
prohibit access to any area and to any extent as long as the measures were appropriate
and done in a manner that was reasonable in the circumstances ldquoThe RCMP may secure
the perimeter of the security zone on land with fencing and restrict access to this zone
through the use of checkpoints and other measuresrdquo57
Though not invoked during the G20 s 101(4) of the FMIOA provides that arrangements
can be entered into with a province concerning the responsibilities of members of the
RCMP and members of the provincial and municipal police forces with respect to
ensuring the security for the proper functioning of an intergovernmental conference No
information was provided to me as to why such an arrangement was not entered into for
the G20
These intergovernmental security provisions of the FMIOA were enacted just prior to the
G8 being held in Kananaskis Alberta in 2002 In light of violent protests at international
events and the 911 terrorist attacks in the United States the Federal Government
53 SOR2009-33654 SOR2010-1355 SOR2010-6256 Supra note 17 ldquoUpon such an Order being made the RCMP in co-operation and collaboration with other police forces becomes impressed with the primary responsibility of ensuring not only the protection of the IPPs but also ensuring lsquosecurity for the proper functioningrsquo of the intergovernmental conference To that end the FMIOA provides that the lsquoappropriate measures including controlling limiting or prohibiting access to any area to the extent and in a manner that is reasonable in the circumstancesrsquo may be takenrdquo57 Ibid
29
considered it timely ldquoto clarify in statute the present common law authority for police to
provide security and protection for high profile international eventsrdquo58 At such events it
was intended that ldquothe RCMP is the lead to make sure that security is providedrdquo59
Given that it was clearly the intention of the Federal Government to have the RCMP as
the lead police force at these international events consideration should be given to
expand the use of the FMIOA to cover all large scale international events such as the
Olympics the Pan American Games and international trade fairs as these events are
routinely attended by heads of state and senior government officials Most recently
Vancouver held the 2010 Olympic and Paralympic Winter Games60 Though federal and
municipal legislation were passed to assist in securing the Games expansion and
application of the FMIOA would have been a better approach The RCMP as the national
police force ought to be in charge pursuant to their authority under the FMIOA
4 Emergency Legislation
Through my consultations with the parties listed in Appendix 2 I heard that while we are
not in a time of war as in 1939 when the PWPA was enacted we live in an age of
international and local terrorism threats Our democratic society must be vigilant in
58 Canada House of Commons Debates 37th Parl 1st Sess No 93 (5 October 2001) at 100059 Canada House of Commons Standing Committee on Public Safety and National Security 40th Parl 3rd
Sess Evidence (25 October 2010)60 In anticipation of this event the Governor General in Council on the recommendation of the Minister of Transport pursuant to the Aeronautics Act (RSC 1985 c A-2) and the Canadian Air Transport Security Authority Act (SC 2002 c 9 s 2) passed the Vancouver 2010 Aviation Security Regulations (SOR2009-298) The purpose of the regulations was to enhance aviation security during the Games The Regulation provided for extra security and extra authorized means to conduct screenings In addition the Vancouver City Council passed the very lengthy By-law No 9962 known as the ldquoVancouver 2010 Olympic and Paralympic Winter Games By-Lawrdquo Specific security measures to be employed at a city live site (described thoroughly in a Schedule to the By-Law) that were enabled by this By-Law included The installation and monitoring of airport style and other security measures including magnetometers and X-ray machines the installation and monitoring of closed circuit television cameras the searching of any person who wished to enter on to a city live site and any bag luggage or other container carried by such person and the prohibiting of access to or removal from a city live site any person who refused to submit to a search
30
maintaining a proper level of security while recognizing that democratic values and
security issues can conflict where public order is at issue It is important to highlight that
provincial legislation exists dealing with both terrorism threats and emergency situations
I have been informed that federal and provincial counter-terrorism plans exist that
address preventing and responding to acts of terrorism
The Police Services Act regulations mandate police forces to establish procedures
consistent with federal and provincial counter-terrorism plans61 and to have policies with
respect to counter-terrorism62 In addition the Emergency Management and Civil
Protection Act allows for orders to be made in situations specifically designated an
ldquoemergencyrdquo63 by the Lieutenant Governor in Council or the Premier that regulate or
prohibit travel and movement to from or within any specified area64 Therefore the
PWPA is not needed to deal with these emergency situations as specific more recent
emergency legislation is in place for that very purpose
C Gaps in Canadian Police Powers
The Ministry of Community Safety and Correctional Services provided me with an
interesting article published in 2010 entitled ldquoThe Gap in Canadian Police Powers
61 Adequacy and Effectiveness of Police Services O Reg 399 s 2862 Ibid s 2963 Section 1 of the Emergency Management and Civil Protection Act defines an ldquoemergencyrdquo as ldquoemergencyrdquo means a situation or an impending situation that constitutes a danger of major proportions that could result in serious harm to persons or substantial damage to property and that is caused by the forces of nature a disease or other health risk an accident or an act whether intentional or otherwise (ldquosituation drsquourgencerdquo)64 RSO 1990 c E9 s 702(4)
31
Canada needs lsquoPublic Order Policingrsquo Legislationrdquo and co-authored by Wesley Pue and
Robert Diab65
This article was prompted by the debate over the cost nature and extent of security to be
employed at the Vancouver 2010 Winter Olympics The authors criticized the fact that
policing authorities in Canada ldquolack specific statutory authorization to take measures
commonly thought necessary to their missionrdquo66 These measures included security
fences in public areas designated protest areas restricted access to public space police
surveillance and searches without cause
The authors recognize that such powers may be necessary but note that ldquono legislature
has ever expressly conferred such powers on policing authorities outside the context of
international intergovernmental conferences Nor does the common law accord such
powers to state officials on its ownrdquo67 I respectfully disagree with this latter statement
It is my view the police have powers pursuant to the common law and statute as I have
discussed in the preceding section
The authors referred to R v Knowlton68 which I have previously discussed While the
authors give Knowlton a very narrow interpretation stating that ldquoits binding principle is a
good deal narrower than the words taken out of context might suggestrdquo69 I however am
of the view that the decision supports the proposition that police have a broad range of
65 Wesley Pue and Robert Diab ldquoThe Gap In Canadian Police Powers Canada Needs lsquoPublic Order Policingrsquo Legislationrdquo (2010) 28 Windsor Rev Legal Soc Issues 87 Wesley Pue is a professor of legal history at the University of British Columbia and Robert Diab is a PhD candidate at the UBC Faculty of Law66 Ibid p 8867 Ibid68 Supra note 3469 Supra note 65 p 92
32
responsibilities with deep historical roots in the common law and codified in statute a
position shared by the Federal Government when it introduced amendments to the
FMIOA The actions of the police in Knowlton were necessarily incidental to their
common law police duties and powers
The authors conclude that this ldquoauthority of police to create zones of exclusion either as
an incident of the general and ancient duties of constableshelliphas never been established in
the courtsrdquo70 I am of the view however that the role of the police in establishing
security zones relating to a crime a serious accident or other emergency is a routine and
well-accepted use of police powers pursuant to their common law and statutory duties I
am not suggesting that this common law authority permits the police to establish security
zones ldquofor the proper functioning of any intergovernmental conference in which two or
more states participaterdquo71 larger than necessary to fulfill their purpose The FMIOA as
amended in 2002 provides the RCMP with ldquoprimary responsibility to ensure the security
for the proper functioning of the intergovernmental conferencerdquo72 It is interesting
however that when the Federal Government was enacting this specific authority the
legislative debates indicated that the government was merely clarifying ldquoin statute the
present common law authority for police to provide security and protection for high
profile international eventsrdquo73
Security perimeters are routinely erected by police in the context of the commission of a
crime motor vehicle and other accidents as well as the Santa Claus parade and other
70 Ibid p 9671 Supra note 8 s 101(1)72 Ibid73 Supra note 58
33
parades It would in my view be quite impractical and unnecessary to legislate an
extensive code of police powers given their common law and statutory responsibilities to
generally maintain public order It is not advisable in my opinion to be prescriptive in
any way regarding what actions the police can take since they must assess what the
situation warrants while at the same time considering individual rights and freedoms
The details of any police response to an emergency must be tailored to the exigencies
related to the situation
The police clearly have common law and statutory authority to conduct warrantless
searches in specific situations (ldquoin exigent circumstancesrdquo)74 However when
warrantless searches must be carried out on a regular routine basis the police are acting
more like full time security guards and there should be specific statutory authority
provided to give such powers
I certainly accept the general proposition the authors assert that the mobility rights of
citizens should not be unreasonably or unfairly dealt with However one only need be
aware of the massive amount of construction taking place on the streets of Toronto as this
Report is being written to appreciate that it is not always reasonable to expect that ldquothe
rights of businesses homeowners and ordinary citizens to go about their routine
activities without interruptionrdquo75 will go unhindered While generally desirable it cannot
be legally guaranteed At the same time the authors do concede that ldquoimportant as they
74 Supra note 42 s 4871175 Supra note 65 p 89
34
are the rights of assembly movement and protest are not unqualified They can ndash and
should ndash be balanced against other important public needsrdquo76
In my view public policing at times requires innovation as it often benefits from
creative problem solving If police abuse their common law powers related to ldquopublic
order policingrdquo they are accountable to a multiplicity of authorities and the rule of law
most particularly the Charter The legal rights outlined in the Charter such as ldquothe
principles of fundamental justicerdquo77 security ldquoagainst unreasonable search and seizurerdquo78
and ldquothe right not to be arbitrarily detained or imprisonedrdquo79 are described very
generally However they were chosen deliberately as it was recognized that in each case
there is an inherent tension between imposing security measures and fundamental rights
and freedoms Determining which is paramount will be based on the facts of each case
76 Ibid p 9177 Canadian Charter of Rights and Freedoms s 7 Part I of the Constitution Act 1982 being Schedule B to the Canada Act 1982 (UK) 1982 c 1178 Ibid s 879 Ibid s 9
35
SECTION 5 LEGAL ANALYSIS OF THE PUBLIC WORKS PROTECTION ACT
A Legal Analysis of the Legislation
Many stakeholders have questioned the constitutional validity of the PWPA and O Reg
23310 The Ontario Ombudsman seriously questioned whether O Reg 23310 could
pass ldquoconstitutional musterrdquo80 The CCLA suggested that the broad police powers
granted under the PWPA were inconsistent with the Charter81
To the same effect were comments made by Premier Dalton McGuinty who described
the PWPA as ldquoan archaic law that was used to undermine Torontoniansrsquo civil rights
during the G20rdquo82 He elaborated83
The issue is whether itrsquos appropriate given our present-day values and given an old law which I am confident doesnrsquot strike the balance that you and I would want today in terms of public safety and individual freedom of expressionhellipWhen you start talking about civil rights individual freedoms yoursquore talking about those things that in fact define us as a free and democratic societyhellipItrsquos something that is real and meaningful and important to all of us
The Terms of Reference for this Review do not require that I conduct a constitutional
analysis of the PWPA I have however been asked to consider areas for reform and if
appropriate make specific recommendations for amendment or repeal This does require
that I therefore consider whether the legislation may be vulnerable to constitutional
challenge
Section 2(b) of the Charter guarantees everyone the fundamental freedom of expression
The definition of ldquoexpressionrdquo has been interpreted broadly ldquoActivity is expressive if it
80 Supra note 32 at para 23381 Supra note 26 p 982 Robert Benzie and Rob Ferguson ldquoMcGuinty shifts focus to fixing G20 lawrdquo Toronto Star (10 December 2010) online thestarcom lthttpwwwthestarcomnewscanadaarticle905436--mcguinty-shifts-focus-to-fixing-g20-lawgt 83 Ibid
36
attempts to convey meaningrdquo84 While freedom of expression is not absolute there is
very little that is not considered expression However expression that advocates violence
is not protected under s 2(b)85
The Supreme Court of Canada in Committee for the Commonwealth of Canada v
Canada held that s 2(b) ldquodoes not encompass the right to use any and all government
property for purposes of disseminating onersquos views on public matters but I have no doubt
that it does include the right to use for that purpose streets and parks which are dedicated
to the use of the public subject no doubt to reasonable regulation to ensure their
continued use for the purposes to which they are dedicatedrdquo86 It seems clear that
protesting in public streets is a form of expression protected by s 2(b) Protesting at an
intergovernmental conference is clearly expressive in nature
In challenges alleging that a statute contravenes s 2(b) of the Charter a court would
examine whether the purpose or effect of a law contravenes section 2(b)87 There is no
reason to suggest that the purpose of the PWPA was to infringe the freedom of
expression The purpose of the PWPA is to protect important public infrastructures A
court would then have to consider whether the effect of the PWPA may have resulted in
an infringement of freedom of expression
O Reg 23310 defined significant portions of downtown Toronto as a ldquopublic workrdquo
Section 3(c) of the PWPA allows peace officers to refuse entry into public works which
therefore limits the areas in which protesters could express themselves By creating the
84 Irwin Toy Ltd v Queacutebec (Attorney General) [1989] 1 SCR 927 at 96885 Ibid at 97086 [1991] 1 SCR 139 at 165-16687 Peter Hogg Constitutional Law of Canada loose-leaf (consulted on 7 January 2011) 5th ed (Toronto Thomson Reuters Canada Limited 2007) at 43-6
37
relatively large security perimeter designated by the regulation individuals may allege
they were not permitted to communicate directly with those they were protesting against
Furthermore individuals could not communicate in public places such as public streets
where the right to freedom of expression has previously been found to exist88
Commissioner Ted Hughes completed an interim report following a public hearing into
the complaints regarding events that took place with respect to the Asia Pacific Economic
Cooperation (APEC) Conference in Vancouver British Columbia in November 1997
Commissioner Hughes recommended that generous opportunity should be afforded to
peaceful protesters to be seen in their protest activities by guests at the event89
Section 7 of the Charter provides that ldquoEveryone has the right to life liberty and security
of the person and the right not to be deprived thereof except in accordance with the
principles of fundamental justicerdquo The PWPA raises issues regarding the liberty and
security of the person in providing for warrantless searches and stopping for
identification Furthermore vague laws offend two fundamental values of our legal
system90 Firstly individuals are not provided with sufficient guidance as to what
behaviour a law prohibits Secondly those in charge of enforcing the law are not
provided with clear guidance as to how to enforce it A vague law can lead to inconsistent
and arbitrary enforcement91
88 Supra note 86 89 Canada Commission for Public Complaints Against the RCMP APEC ndash Commission Interim Report (31 July 2001) at s 3111 (Commissioner Ted Hughes QC) online Commission for Public Complaints Against the RCMP lthttpwwwcpc-cppgccaprrrepphrapecapec-31-engaspxgt90 Supra note 87 at 47-60 91 ldquoA vague provision does not provide an adequate basis for legal debate that is for reaching a conclusion as to its meaning by reasoned analysis applying legal criteria It does not sufficiently delineate any area of risk and thus can provide neither fair notice to the citizen nor a limitation of enforcement discretion Such
38
As described by Professor Hogg92
The requirement that any limit on rights be prescribed by law reflects two values that are basic to constitutionalism or the rule of law First in order to preclude arbitrary and discriminatory action by government officials all official action in derogation of rights must be authorized by law Secondly citizens must have reasonable opportunity to know what is prohibited so that they can act accordingly Both these values are satisfied by a law that fulfils two requirements (1) the law must be adequately accessible to the public and (2) the law must be formulated with sufficient precision to enable people to regulate their conduct by it and to provide guidance to those who apply the law
As I stated earlier the phrase ldquoany approach theretordquo contained in s 3(a) of the PWPA is
potentially vague No criteria are provided to assist in determining when one is on ldquoany
approach theretordquo A phrase such as ldquoany approach theretordquo is subject to many potential
interpretations It is arguable that this language does not provide reasonable guidance for
individuals to obey the law and for the law to be consistently enforced
Section 8 of the Charter provides that ldquoEveryone has the right to be secure against
unreasonable search or seizurerdquo A warrantless search or seizure is only reasonable if the
search was authorized by law the law itself is reasonable and the manner in which the
search carried out was reasonable93 The fact that no reasonable or probable suspicions
are needed to carry out a search pursuant to s 3(b) of the PWPA raises some issues The
only prerequisite to such a search is that the person or vehicle being subjected to a search
is entering or attempting to enter a public work
a provision is not intelligible to use the terminology of previous decisions of this Court and therefore it fails to give sufficient indications that could fuel a legal debaterdquo (R v Nova Scotia Pharmaceutical Society [1992] 2 SCR 606 at 639-640) 92 Supra note 87 at 38-1293 R v Nolet [2010] SCJ No 24 at para 21
39
Whether the PWPArsquos s 3(b) authority to undertake warrantless searches is ldquoreasonablerdquo
depends on the reasonableness of the impact on the subject of the search ldquoThe
individuals reasonable expectation of privacy must of course be balanced against the
public interest in effective law enforcementrdquo94 It is harder to justify a warrantless search
where the reasonable expectation of privacy is higher For example interference with
bodily integrity will raise the standard of reasonableness Conversely in situations where
people expect to have a lower level of privacy the standard to prove reasonableness is
lower
One rightfully has some expectation of privacy when in public but it does not rise to the
level of privacy that one expects in onersquos home The expectation of privacy further
decreases when one attempts to enter a ldquopublic workrdquo especially in the context of a
secured barrier to an intergovernmental conference
Section 9 of the Charter provides that ldquoEveryone has the right not to be arbitrarily
detained or imprisonedrdquo95 Under s 3(a) of the PWPA a person entering or attempting to
enter or approach a public work must provide his or her name and address and state the
purpose for which he or she desires to enter the public work In order for a guard or
peace officer to carry out this duty the guard or peace officer may ldquostoprdquo the person from
further approaching or entering the public work and the person is not permitted under the
statute to decide not to enter By so doing it is arguable the guard or peace officer has
assumed control over the movement of the individual by a demand or direction The
94 R v Rao [1984] OJ No 3180 at para 79 (CA)95 ldquoDetention under s 9hellipof the Charter refers to a suspension of the individualrsquos liberty interest by a significant physical or psychological restraint Psychological detention is established either where the individual has a legal obligation to comply with the restrictive request or demand or a reasonable person would conclude by reason of the state conduct that he or she had no choice but to complyrdquo (R v Grant [2009] SCJ No 32 at para 44)
40
PWPA provides for a significant legal consequence if the demand or direction is not
followed since ldquoEvery person who neglects or refuses to comply with a request or
direction made under this Act by a guard or peace officer and every person found upon a
public work or any approach thereto without lawful authority the proof whereof lies on
him or her is guilty of an offence and on conviction is liable to a fine of not more than
$500 or to imprisonment for a term of not more than two months or to bothrdquo96
Pursuant to s 3(b) of the PWPA a guard or peace officer may search any person entering
or attempting to enter a public work These searches would necessitate the detention of a
person If a guard or peace officer performs such a search he or she has taken control
over the movement of the person by a demand or direction The same serious legal
consequence results from failing to obey this demand or direction as that which results
from failing to obey the demand or direction pursuant to s 3(a) of the PWPA As a
result ldquodetentionsrdquo could occur pursuant to both s 3(a) and s 3(b) of the PWPA
The question that would need to be addressed in any challenge to the PWPA is whether
the detentions permitted by the PWPA are arbitrary in nature The use of the term ldquoany
approach theretordquo is vague and imprecise A person could be deemed to be on ldquoany
approach theretordquo a great distance from the entrance of a public work and their detention
might very well be arbitrary In addition the fact that the guards and peace officers
determine the boundaries of the ldquoapproachesrdquo which cannot be contested seems
arbitrary as well as who they chose to search
96 It should be noted that not all communications with state authorities and police officers will amount to a detention The question is whether a person may reasonably believe that he or she is free to refuse to comply
41
Section 11(d) of the Charter provides that ldquoAny person charged with an offence has the
right to be presumed innocent until proven guilty according to law in a fair and public
hearing by an independent and impartial tribunalrdquo This requires that the Crown have the
burden of proving the guilt of an individual charged with an offence97 Provisions that
place the burden on the accused to disprove on the balance of probabilities an essential
element of an offence raises s 11(d) concerns because convictions would be possible
even if reasonable doubt existed98 The presumption of innocence is not only infringed
upon by a requirement that an accused disprove an essential element of an offence but
also any requirement on an accused to prove a fact on the balance of probabilities to
avoid conviction
Section 5(1) of the PWPA states that ldquoEvery person who neglects or refuses to comply
with a request or direction made under this Act by a guard or peace officer and every
person found upon a public work or any approach thereto without lawful authority the
proof whereof lies on him or her is guilty of an offence and on conviction is liable to a
fine of not more than $500 or to imprisonment for a term of not more than two months or
to bothrdquo For the offence of being found upon a public work or on any approach to a
public work without lawful authority the burden of proof has been ldquoshiftedrdquo from the
Crown to the accused to prove lawful authority
As the foregoing analysis reveals there are certainly many concerns that arise when one
places the PWPA under the lens of the Charter However the rights and freedoms
provided by the Charter are not absolute They are ldquosubject only to such reasonable
97 R v Oakes [1986] 1 SCR 10398 Ibid at 132
42
limits prescribed by law as can be demonstrably justified in a free and democratic
societyrdquo99
In assessing whether a law which infringes the Charter is saved by s 1 a court examines
both the object of the law and the measures taken to achieve that objective A lawrsquos
objective achieves the status of being sufficiently important to justify overriding a
Charter right only when it is consistent with the values of a free and democratic society
The objective must relate to pressing and substantial concerns and not concerns that are
trivial and must be focussed on ldquothe realization of collective goals of fundamental
importancerdquo100 The measures adopted must be ldquorationally connectedrdquo to the objective of
the law101 The measures ldquoshould impair lsquoas little as possiblersquo the right or freedom in
questionrdquo102 Furthermore there must be ldquoa proportionality between the effects of the
measures which are responsible for limiting the Charter right or freedom and the
objective which has been identified as of lsquosufficient importancersquordquo103
An issue that may affect whether the potential limitation on rights and freedoms of the
PWPA and O Reg 23310 were ldquoprescribed by lawrdquo is whether the regulation was
adequately accessible to the public The Ontario Ombudsman the CCLA and the Ontario
Bar Association (ldquoOBArdquo) all noted a lack of notice regarding O Reg 23310 and its
effects prior to and during the G20 While the text of the regulation was available prior
99 Charter s 1 The Superior Court of Quebec decision of Tremblay v Queacutebec (Attorney General) [2001] JQ No 1504 (CS) involved an interim injunction brought by an applicant who was denied entry into the secured perimeter during the 2001 Summit of the Americas in Queacutebec City The applicant sought an injunction to either eliminate the security barrier or to be given a pass to let him within the secured perimeter Even though the Court held that the erection of the security zone violated the applicantrsquos right to freedom of expression and peaceful assembly The court held that the infringement was ldquodemonstrably justified in a free and democratic societyrdquo100 Supra note 97 at 136101 Ibid at 139102 Ibid103 Ibid
43
to the G20 it was only available on a website not frequently accessed by the public
Since O Reg 23310 was not published in The Ontario Gazette until after it was
revoked it may be that the regulation was not adequately accessible to the public
Reverse onus offences have been found to be ldquorationally connectedrdquo when there is plainly
a rational connection between the proven fact and the fact to be presumed Reverse
onuses have also been upheld when the burden placed on the Crown would be virtually
impossible to meet (such as proving sanity)104 Even if the accused only has the burden
of disproving the fact that heshe did not have lawful authority to be in a public work or
on an approach thereto there may not be a rational connection between the proven fact
and the fact to be presumed
The history of threats and violence at previous intergovernmental conferences
demonstrated that the protection of G20 participants was a pressing and substantial
concern However given the broadness of the PWPA every exercise of it raises the
potential for Charter scrutiny
Recommendation
Given the public policy considerations I have raised regarding the PWPA and Charter
concerns that could arise I recommend that the PWPA be repealed after the Province has
considered potential policy and security gaps as a result of its repeal
B Other uses of the Public Works Protection Act
It appears from my consultations with stakeholder groups that if the PWPA is repealed
104 R v Chaulk [1990] 3 SCR 1303 at 1340
44
there are two areas which may require legislation to provide specific peace officer
powers These two areas are court security and the protection of nuclear power facilities
and other power generating infrastructures
1 Court Security
During my decade as Ontariorsquos Attorney General (1975 to 1985) there were three
murders in provincial courthouses as well as many threats to members of courthouse staff
and others As violent acts in courthouses can be anticipated courtroom security is often
required
Individuals are compelled to go to court for a variety of reasons such as appearing as an
accused as a witness or for jury duty To provide protection to those who work there or
are compelled to attend an adequate level of court security may require a search without
warrant of each and every individual who seeks to enter a courthouse It is not reasonable
to require prior judicial authorization for each search that takes place
The courts have considered the constitutionality of these provisions of the PWPA in
conjunction with section 137 of the Ontario Police Services Act in the context of court
security
Section 137 of the Ontario Police Services Act imposes a responsibility on municipal
police services boards to secure the premises where court proceedings are conducted and
includes
1 Ensuring the security of judges and of persons taking part in or attending proceedings
45
2 During the hours when judges and members of the public are normally present ensuring the security of the premises
3 Ensuring the secure custody of persons in custody who are on or about the premises including persons taken into custody at proceedings
4 Determining appropriate levels of security for the purposes of paragraphs 1 2 and 3
In R v Campanella105 Ms Campanella was attending the John Sopinka Courthouse in
Hamilton At the courthouse there were signs posted stating that those who entered
would be searched for weapons When Ms Campanellarsquos bag was searched marijuana
was found and she was charged with the possession of marijuana She argued that her s
8 Charter protection against unreasonable search and seizure had been violated and the
marijuana discovered during the search should therefore be excluded as evidence The
trial judge and the summary convictions appeal court rejected the section 8 Charter
argument and the appellant appealed to the Ontario Court of Appeal
The Ontario Court of Appeal agreed that ldquogiven the importance of the government
objective and the context in which these searches take place it is reasonable to authorize
warrantless searches of those entering courthouse facilitiesrdquo106 The Court stated ldquothe
only effective way to diminish the risk in a large courthouse is to subject everyone
without prior security clearance to some kind of inspection I can see no other feasible
means of achieving the aimrdquo107
The Court also pointed out the concern relating to the erosion of the benefits and
105 [2002] OJ No 5104 (SCJ) affrsquod [2005] OJ No 1345 (CA) [ldquoCampanellardquo]106 R v Campanella [2005] OJ No 1345 at para 17 (CA)107 Ibid at para 19
46
protections conferred by s 8 of the Charter108
I am sensitive to the concern that we should not erode the benefits and protections of s 8 by gradually sanctioning ever-greater intrusions into privacy because of unfounded fears We should not lightly accept that searches in public places are justified solely because people have become used to them and expect them However the record in this case establishes the justification for the kinds of searches carried out in this case
Ultimately the appeal was dismissed and s 137 of the Police Services Act and s 3(b) of
the PWPA) were held to comply with s 8 of the Charter109
In its consultations with me the OBA similarly stated that the existing nature of court
security is necessary and is generally ldquowell toleratedrdquo At the same time however it
submits that the security regime should not be ldquoshoehornedrdquo into the PWPA regime and
that it would be preferable to provide a legislative framework tailored for the specific
security requirements While the PWPA has been relied upon as support for the exercise
of powers by the police in providing court security the OBA submits that the PWPArsquos
ldquosingle security schemerdquo which declares something a ldquopublic workrdquo is an ldquoawkward
blunt instrument in a world where more specialized tools are necessaryrdquo When
warrantless searches are being done on a routine basis it is advisable to have specific
legislation providing peace officers with such power
Recommendation
Court security legislation is currently in place in many jurisdictions across Canada and
contain provisions that permit warrantless searches of persons wanting to access a
108 Ibid at para 25109 The Court in R v SS [2005] OJ No 5002 (SCJ) agreed with the findings and rationale of the Court of Appeal in Campanella
47
courthouse The constitutional validity of such legislation in Manitoba was upheld by that
provincersquos highest court110
Given the ongoing need for warrantless searches at courthouses the Province of Ontario
should consider specific court security legislation in Ontario to support the security
measures in our courthouses if the PWPA is to be repealed taking into consideration the
responsibilities of the municipal police services boards provided in s 137 of the Police
Services Act This legislation should only be passed after proper notice consultation and
legislative debate
2 Power Generating Infrastructures
It is clear from the submissions that I received from representatives of OPG and the
Canadian Nuclear Safety Commission (ldquoCNSCrdquo) that the PWPA currently plays a role in
providing security officers with the powers to secure power generating infrastructures
including the ability to carry firearms and the ability to stop and require identification
from those in proximity to those nuclear plants
Security is of the utmost importance in protecting a nuclear power plant Members of the
public do not need to access a nuclear or similar power facility unless employed at the
facility or carrying out work for the facility111
The security of areas within nuclear power plants is governed by the Nuclear Security
110 R v Lindsay [2004] MJ No 380 (CA) 111 Though the discussion focuses on nuclear power plants I have been informed that other power generating infrastructures use the PWPA to designate their security officers as guards As a result if the PWPA is repealed it will be necessary to broaden the consultations in relation to these other power generating infrastructures
48
Regulations112 Every nuclear power plant must be located within a ldquoprotected areardquo113
This protected area is the area within a fenced perimeter which is alarmed and
continually patrolled This area must be equipped with devices that employ two
independent systems to detect intrusion into the area114 The Nuclear Security
Regulations also provide detailed specifications for the barrier which must enclose the
protected area115 In addition licensees must ldquoidentify all vital areas and implement
physical protection measures ndash including access control and measures designed to delay
unauthorized accessrdquo116
The Nuclear Security Regulations also provide detailed provisions regarding entry into
protected areas No person can ldquoenter a protected area without physical proof of the
recorded authorization of the licenseerdquo117 Further to this on entry into a protected area
ldquothat personrsquos identity shall be verified by two separate personnel identity verification
systems one of which is an access card reader and the other of which is a biometric
personnel identity verification devicerdquo118 Licensees must also ldquoensure that vehicle
portals are used for the entry and exit of land vehicles into and from a protected areardquo119
Physical protection measures are also required to reduce the chance of a forced land
vehicle entry into a protected area120
The power to conduct searches upon entry to a protected area is also provided by the
112 SOR2000-209 113 Ibid s 8114 Ibid s 11(a)(i)115 Ibid s 9116 Ibid s 141117 Ibid s 17(1)118 Ibid s 171119 Ibid s 91(1)120 Ibid s 91(4)
49
Nuclear Security Regulations Signs must be posted that are visible to people about to
enter the protected area stating that they must allow a nuclear security officer (ldquoNSOrdquo) to
ldquosearch them and everything in their possession including any land vehicle for weapons
and explosive substancesrdquo121 In addition when leaving the protected area people must
allow NSOs to ldquosearch them and everything in their possession including any land
vehicle for Category I II or III nuclear materialrdquo122 People are not permitted to enter or
leave a protected area unless these searches are carried out123 The Nuclear Security
Regulations provide for the method of search including ldquoa hand-held scanner a walk-
through scanner or any similar devicerdquo124 In addition if an NSO determines it
necessary a frisk search can be carried out by a person of the same sex125
I have been informed that the area outside of but adjacent to the ldquoprotected areardquo is
referred to as the ldquocontrolled areardquo This area includes roadways and waterways within
the nuclear facilityrsquos property boundaries adjacent to or in close proximity to the nuclear
power plantrsquos protected area and may be generally accessible to the public
As a result of the September 11 2001 terrorist attacks the Nuclear Security Regulations
were amended to require that high security nuclear facilities maintain an on-site armed
Nuclear Response Force (ldquoNRFrdquo)126 The NRF is composed of specialized NSOs
Section 32 of the Nuclear Security Regulations requires the NRF to be capable of making
an effective intervention taking into account the threat
121 Ibid s 27(1)(a)122 Ibid s 27(1)(b)123 Ibid s 27(2)124 Ibid s 27(5)(a)125 Ibid s 27(5)(b)126 Ibid s 32
50
Members of the NRF are mandated by the Nuclear Security Regulations to be ldquotrained in
the use of firearms authorized to carry firearms in Canada and qualified to use themrdquo127
However to satisfy this requirement the NRF resorts to the PWPA since the federal
regulations do not authorize the NRF to carry firearms without a licence However
under s 2(1) of the PWPA NSOs are designated as ldquoguardsrdquo with the powers of a peace
officer most significantly to carry and use firearms without having to be licensed128
Such a designation also enables the OPG to acquire and dispose of firearms
In the consultations I had with the OPG and the CNSC they advised me that NSOs
receive training equivalent to Canadian police standards and that NRF officers receive
training equivalent to federal and provincial police tactical team requirements
Another aspect of the PWPA used to secure nuclear power plants relates to powers
exercised by NSOs in ldquocontrolled areasrdquo The federal regulations do not provide the
NSOs with any power to demand identification within this area However pursuant to
the PWPA as appointed ldquoguardsrdquo the NSOs have the power to demand identity
verification in the controlled area They also have the authority to arrest anyone who
obstructs NSOs in the performance of their duties under the PWPA
In addition to using the PWPA to secure the controlled areas I have been advised by the
OPG that NSOs use powers pursuant to the PWPA to secure areas within 100 metres of a
nuclear facilityrsquos property line immediately adjacent to the controlled area These powers
are exercised under the broad language of the PWPA regarding ldquoapproaches to public
127 Ibid s 1 (on-site nuclear response force definition)128 Section 11707 of the Criminal Code exempts peace officers from licensing requirements for possessing firearms and other prohibited and restricted weapons
51
worksrdquo This is an illustration of the problem with the vagueness of this language in the
legislation As these powers are exercised on public land they could be challenged as a
potential infringement on individual rights and freedoms However I have been advised
that there have been no such incidents to date The need to ensure the security of these
facilities must be taken into the balance
NSOs must be able to monitor and control access to the controlled areas and areas close
to a nuclear power plantrsquos property line This provides for a more secure perimeter
around these facilities They need authority to challenge individuals acting in a suspicious
manner or conducting surveillance of nuclear facilities The OPG has informed me that
areas outside a nuclear facilityrsquos property line immediately adjacent to the controlled
area are still close enough to take advantage of the short distance to conduct intelligence
using high-powered surveillance equipment These nuclear power plants are not located
on isolated islands and are therefore vulnerable Both the Pickering Nuclear Generating
Station and the Darlington Nuclear Generating Station operate within major urban areas
being 30 km and 60 km east of downtown Toronto respectively I am advised that
previous events such as ldquoThe Toronto 18rdquo129 have shown that those intent on targeting
vital infrastructure such as power generating facilities often use reconnaissance and
intelligence gathering as precursor tactics
Recommendation
If the PWPA is to be repealed it is imperative that those who secure our nuclear and
power generating facilities be given the requisite specific legislative powers to do so
129 See for example ldquoLast 2 Toronto 18 accused found guiltyrdquo CBC News (23 June 2010) online cbcca lthttpwwwcbccanewscanadatorontostory20100623toronto-18-verdicthtmlgt
52
The source for these powers should be set out in the federal Nuclear Security
Regulations However if this is not a desired option the Government of Ontario must
consider specific legislation setting out the specific powers required to properly secure
these facilities and the specific location in which these powers can be exercised Such
legislation should not be passed without proper notice consultation and legislative
debate
53
SECTION 6 CONCLUSION
The PWPA was enacted in 1939 to support the war effort At the time the protection of
Ontariorsquos hydroelectric facilities from sabotage was of particular concern Since then the
PWPA has been used to provide the legal foundation for the powers exercised by the
police in providing court security and even more recently by the OPG in securing
nuclear power facilities In June 2010 the PWPA was used to provide powers to secure
intergovernmental conferences The vagueness of the PWPA permits it to be used in
situations when it is arguably not necessary and potentially abusive In my view the
PWPA has been used for purposes beyond its original intent
The time for the PWPA seems to have passed If the Government of Ontario enacts as I
have suggested specific legislation to provide for courthouse security and power
generating infrastructure security it would appear that there is no longer a need for the
PWPA I am also mindful of the existence of counter-terrorism and emergencies
legislation to deal with these situations as they arise
ldquoIn determining the boundaries of police powers caution is required to ensure the proper
balance between preventing excessive intrusions on an individualrsquos liberty and privacy
and enabling the police to do what is reasonably necessary to perform their duties in
protecting the publicrdquo130 The overly broad and vague language of the PWPA does not
strike this required balance with individual rights and freedoms
The late Justice Jackson of the United States Supreme Court stated that every
emergency power once conferred ldquolies about like a loaded weapon ready for the hand of
130 R v Clayton [2007] 2 SCR 725 at 742
54
any authority that can bring forward a plausible claim of an urgent needrdquo131 The need to
protect the public must be balanced with the requirement to preserve fundamental rights
and freedoms
Yet at the same time ldquoCanadians are entitled to demand the best public order policing
possible from their governmentrdquo132 There is no question that we live in a different world
post 911 We live in difficult times with constant threats both domestically and from
abroad The police clearly need to be given adequate powers to carry out their duties
The police use their expertise on a daily basis to assess the powers they require In
instances when they take action that exceeds their powers their actions are examined by
various mandated bodies This process I believe results in the proper balance between
police powers and individual rights and freedoms Therefore any legislation that purports
to grant special police powers must be specific and direct and developed in consultation
with stakeholders and tested through thorough debate in our transparent democratic
system
131 Korematsu v United States 323 US 214 (1944)132 Supra note 26 p 8
55
Four days earlier on June 11 2010 Mike McDonell the Assistant Commissioner of the
RCMP sent a letter to Chief Blair17 containing a thorough review of the statutory sources
of the RCMPrsquos duties and powers to secure intergovernmental conferences Assistant
Commissioner McDonell outlined the police authority to fully secure the G8 and G20
Summits
More specifically in relation to the Summits the RCMP will be taking measures to fulfill duties related to the protection of Internationally Protected Persons (IPPrsquos) that befall police in general and the RCMP in specific The official visit of the head of state or high ranking dignitary of a foreign country is an event that frequently engenders a real or apprehended threat to the preservation of peace which demands the adoption of proper and reasonable security measures in and by the host country
Furthermore Canada is a signatory of the United Nations Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons Including Diplomatic Agents In that regard Canada has specifically adopted laws requiring peace officers to protect IPPs as defined in section 2 of the Criminal Code in accordance with its international obligationshellip
Legal authorities also permit the RCMP to collaborate with other police forces such as the OPP in the fulfillment of its duties including in relation to securing the perimeter Such collaboration is essential in light of concurrent mandates of policing partners particularly in relation to the legal duties to preserve the peace and protect life and property
E O Reg 23310
On June 2 2010 Cabinetrsquos Legislation and Regulations Committee passed O Reg
23310 It was signed by the Lieutenant Governor on June 3 2010 and published on June
16 2010 on e-Laws a website maintained by the Government of Ontario not frequently
accessed by the public This website provides access to official copies of Ontariorsquos
statutes and regulations O Reg 23310 came into force on June 21 2010 and was
17 Attached as Appendix 9 is a copy of the June 11 2010 letter
13
revoked on June 28 2010 It was not published in The Ontario Gazette18 until July 3
2010 after it had already been revoked Section 23(2) of Ontariorsquos Legislation Act
200619 provides that a regulation is not effective against a person before the earliest of
when the person has actual notice of it the last instant on the day on which it is published
on the e-Laws website or the last instant of the day on which it is published in the print
version of The Ontario Gazette As a result though the technical requirements for
providing notice of O Reg 23310 were met I have concerns whether adequate notice
was given to the public especially in light of the fact that the regulation was not
published in The Ontario Gazette until it had already been revoked
The regulation set out the area where the security fence was to be erected and designated
that area as a ldquopublic workrdquo which then called into play all the powers provided by the
PWPA
ONTARIO REGULATION 23310
made under the
PUBLIC WORKS PROTECTION ACT
Made June 2 2010Filed June 14 2010
Published on e-Laws June 16 2010Printed in The Ontario Gazette July 3 2010
DESIGNATION OF PUBLIC WORKS
Designation 1 The following are designated as public works for the purposes of the Act 1 Everything described in clause (a) of the definition of ldquopublic workrdquo in section
1 of the Act that is located in the area described in Schedule 1 including without limitation and for greater certainty every sidewalk in that area
2 The places described in paragraphs 1 2 and 3 of Schedule 2
18 The Ontario Gazette contains Ontariorsquos legal notices and regulations19 SO 2006 c 21 Sched F
14
Revocation 2 This Regulation is revoked on June 28 2010
Commencement 3 This Regulation comes into force on the later of June 21 2010 and the day
it is filed SCHEDULE 1
AREA REFERRED TO IN PARAGRAPH 1 OF SECTION 1
The area in the City of Toronto lying within a line drawn as follows
Beginning at the curb at the southeast corner of Blue Jays Way and Front Street West then north to the centre of Front Street West then east along the centre of Front Street West to the east curb of Windsor Street then north along the east curb of Windsor Street to the centre of Wellington Street then east along the centre of Wellington Street to the centre of Bay Street then south along the centre of Bay Street to a point directly opposite the north wall of Union Station then west along the exterior of the north wall of Union Station to the centre of York Street then south along the centre of York Street continuing east of the abutments under the railway overpass and continuing south along the centre of York Street to the centre of Bremner Boulevard then west along the centre of Bremner Boulevard to the east curb of Lower Simcoe Street then south along the east curb of Lower Simcoe Street to the north curb of Lake Shore Boulevard West then west along the north curb of Lake Shore Boulevard West to the south end of the walkway that is located immediately west of the John Street Pumping Station and runs between Lake Shore Boulevard West and the bus parking lot of the Rogers Centre then north along the west edge of that walkway to the bus parking lot of the Rogers Centre then west along the south edge of the bus parking lot of the Rogers Centre to the west edge of the driveway running between the parking lot and Bremner Boulevard then north along the west edge of that driveway to the north curb of Bremner Boulevard then west along the north curb of Bremner Boulevard to the east curb of Navy Wharf Court then north along the east curb of Navy Wharf Court to the southwest point of the building known as 73 Navy Wharf Court then east along the exterior of the south wall of that building then north along the exterior of the east wall of that building to the curb of Blue Jays Way then north along the east curb of Blue Jays Way to the curb at the southeast corner of Blue Jays Way and Front Street West
SCHEDULE 2DESIGNATED PLACES REFERRED TO IN PARAGRAPH 2 OF SECTION 1
1 The area within the area described in Schedule 1 that is within five metres of a line drawn as follows Beginning at the south end of the walkway that is located immediately west of the John Street Pumping Station and runs between Lake Shore Boulevard West and the bus parking lot of the Rogers Centre then north along the west edge of that walkway to the bus parking lot of the Rogers Centre then west along the south edge of the bus parking lot of the Rogers Centre to the west edge of the driveway running between the parking lot and Bremner
15
Boulevard then north along the west edge of that driveway and ending at Bremner Boulevard
2 The area within the area described in Schedule 1 that is within five metres of a line drawn as follows
Beginning at the southwest point of the building known as 73 Navy Wharf Court then east along the exterior of the south wall of that building then north along the exterior of the east wall of that building and ending at the curb of Blue Jays Way
3 The below-grade driveway located between Union Station and Front Street West and running between Bay Street and York Street in the City of Toronto
F Information Given to Public Regarding Security Protocol
Attempts were made to inform the public about the security measures that would be in
place leading up to and throughout the G20 The City of Toronto in consultation with
the ISU produced an information article20 and flyers21 No mention is made in the article
or flyers of the PWPA or O Reg 23310 and the powers given to the police The City of
Toronto also prepared an advertisement which appeared in local newspapers22 The
original version of the advertisement made no reference to the fact that people would be
subject to a search when attempting to access the security perimeter although reference
was made to the requirement to show identification and to have a valid purpose for
entering the restricted area A later version of the advertisement included additional text
advising that anyone requesting access to the security perimeter may be subject to a
search However just as with the article and flyers no specific mention was made of the
PWPA or O Reg 23310
20 A million copies of the newsletter Our Toronto which contained an article entitled ldquoWhat to expect during the G20 ndash June 26 amp 27 2010rdquo were delivered to homes in the City of Toronto21 Approximately 10000 flyers were sent to homes and businesses within the affected area The flyercontained general information about security and the anticipated effects on traffic22 The advertisement appeared in the Toronto Star Toronto Sun and Metroland community papers
16
In the days leading up to and throughout the G20 Summit there was apparently a
misunderstanding on the part of the police regarding a purported ldquofive-metre rulerdquo This
confusion likely emanated from the ldquofive-metresrdquo referenced in Schedule 2 of O Reg
23310 However the purpose of Schedule 2 was to designate as ldquopublic work(s)rdquo three
specific private property locations on which the security fence was to be erected that were
not ldquopublic worksrdquo The remainder of the fence was on public sidewalks and streets
which are ldquopublic worksrdquo To ensure that the fence was located on a ldquopublic workrdquo the
drafters designated the area within five metres of the security fence in these three
locations as a ldquopublic workrdquo23 Unfortunately the wording of Schedule 2 was very
cumbersome and the relationship between the area defined in Schedule 1 and the five-
metre reference in Schedule 2 was difficult to understand
Because of this confusion unfortunately the message was conveyed that the regulation
provided for a five-metres zone outside the entire security fence and that therefore the
PWPA applied to this entire area24 The media reported during the G20 summit that the
police had ldquosweepingrdquo powers pursuant to the PWPA within five-metres outside of the
exterior security fence25 O Reg 23310 did not provide the police such authority
23 Attached as Appendix 10 is a copy of a map showing the three specific areas designated in Schedule 2 of O Reg 2331024 Jennifer Yang ldquoJust being near the G20 security zone can get you arrestedrdquo Toronto Star (25 June 2010) online thestarcom lthttpwwwthestarcomnewsgtatorontog20summitarticle828498--just-being-near-the-g20-security-zone-can-get-you-arrestedgt25 David Rider et al ldquoDalton McGuinty Bill Blair defend quiet boost in arrest powersrdquo Toronto Star (26 June 2010) online thestarcom lthttpwwwthestarcomnewsgtatorontog20summitarticle828974--dalton-mcguinty-bill-blair-defend-quiet-boost-in-arrest-powersgt
17
SECTION 3 COMMENTARY
A Public Policy Considerations
There are some overarching public policy considerations which affect the issues I have
been asked to address in the Terms of Reference
As stated earlier the legislation was the product of emergency World War II concerns
related to the possibility of enemy sabotage of important infrastructures The legislative
debates in September of 1939 were particularly concerned with the provincersquos
hydroelectric facilities However notwithstanding these apparently specific concerns
when drafted the definition of ldquopublic workrdquo is extraordinarily broad and from a policy
standpoint raises questions of overbreadth especially given the ability to designate
almost anything a public work In a mere definition section s 1 of the legislation allows
the Lieutenant Governor in Council to designate ldquoany other building place or workrdquo as a
ldquopublic workrdquo However taken to its logical conclusion an entire city or more could be
designated as a ldquopublic workrdquo The definition of ldquopublic workrdquo includes ldquoany provincial
and any municipal public buildingrdquo but ldquopublic buildingrdquo is not further defined thereby
creating an element of uncertainty as to the specific provincial and municipal buildings
captured by this definition While perhaps extreme measures in times of war require
flexibility in all other circumstances legislation of this nature requires limitations and a
more specialized approach
The expression ldquoprivate armyrdquo was used in the Ontario legislative debate in 1939
Theoretically at least private armies could be created through the use of the ldquoguardrdquo
appointing authority by the many individuals who are authorized to appoint guards
pursuant to the PWPA This authority was apparently in response to the Federal
18
Governmentrsquos refusal to assume through the Defence Department the responsibility of
guarding utilities and industries essential to the war effort While such a result might not
have been contemplated in a parliamentary democracy it is clearly unwise to leave such
a possibility open
Section 3 of the PWPA provides in part that a guard or a peace officer
(a) may require any person entering or attempting to enter any public work or any approach thereto to furnish his or her name and addresshellipand to state the purpose for which he or she desires to enter the public work in writing or otherwise
The primary problem I see with this section is the vagueness of the term ldquoapproach
theretordquo An approach could begin at a considerable distance from the public work
Section 6(b) also provides for the making of regulations ldquodefining the areas that
constitute approaches to public works either generally or with regard to a particular
public workrdquo
In addition s 3(b) of the PWPA provides that a guard or peace officer ldquomay search
without warrant any person entering or attempting to enter a public workrdquo This section
does not permit any person to abandon any attempt to enter a public work in order to
avoid being subjected to a warrantless search Such conduct is adopted by persons who
decide not to enter a secured courthouse in order to avoid a warrantless search
Section 4 provides that for the purposes of the PWPA the statement under oath made by
persons engaged in the operation of a public work ldquoas to the boundaries of the public
work is conclusive evidence thereofrdquo Section 4 should be considered with s 5(1) which
provides that ldquoevery person found upon a public work or any approach thereto without
lawful authority the proof whereof lies on him or her is guilty of an offencehellip(emphasis
19
added)rdquo The provision in s 4 that ldquothe statement under oathhellipis conclusive evidence
thereofrdquo appears to remove from a courtrsquos consideration what could be a legitimate
dispute as to the boundaries of a public work or the approach thereto Furthermore the
apparent reversal of the onus of proof regarding lawful authority to be found in a public
work or an approach found in s 5 is also troublesome from a policy and legal point of
view
Accordingly if utilized to the extreme many government officials could appoint many
private armies to restrict access to many (in fact any) public places where the mere
statement under oath by the private guard of the boundaries of the areas under restricted
access is conclusive proof thereof Such potential for abuse is beyond troubling to say
the least
B Review of other Public Reports
As is evident from the foregoing discussion many issues arise regarding the operation of
the PWPA in todayrsquos context These considerations and others also formed the basis of
concerns raised in public reports which I was asked to review
1 Reports of the Canadian Civil Liberties Association
The CCLA preliminary G20 report26 dealt with most of the police related events that
occurred in Toronto during the G20 conference during the weekend of June 26th and 27th
2010 I will only make reference to a few portions of the report that deal with the Terms
of Reference
26 Canadian Civil Liberties Association A Breach of the Peace ndash A Preliminary Report of Observations During the 2010 G20 Summit June 29 2010 online Canadian Civil Liberties Association lthttpcclaorgwordpresswp-contentuploads201006CCLA-Report-A-Breach-of-the-Peace-Preliminary-report-updated-July-8pdfgt
20
The report of the CCLA called for the repeal or significant amendment to the PWPA ldquoto
meet basic constitutional standardsrdquo27 The CCLA ldquosuggests that the broad police powers
granted under the Act are inconsistent with current Charter requirementsrdquo28
I agree with the observation of the CCLA that the provisions of the PWPA led to a ldquolack
of clarity as to the scope of the search and seizure powersrdquo29 which created many
difficulties and conflicts that probably could have been avoided I would also certainly
agree with a conclusory comment in this preliminary report that ldquoit is the duty of police
officers to act with fairness and equanimity toward all citizens in accordance with the law
of the country The presumption of innocence and the protection against arbitrary arrests
and detention are at the core of a commitment to justicerdquo30
The CCLA in partnership with the National Union of Public Employees organized
public hearings for two days in Toronto and one day in Montreal in November of 2010
which they referred to as a Citizens Inquiry The Citizens Inquiry heard from 63 members
of the public who had witnessed policing incidents or had been detained Several lawyers
and academics also participated in the hearing and offered commentary on the events of
the G20 from a legal or policing perspective including issues related to the PWPA A
report of the hearings titled ldquoG20 Toronto Breach of the Peace Public Hearingsrdquo was
released on February 28 2011 which also referred to the PWPA31
27 Ibid p 2228 Ibid p 929 Ibid p 1230 Ibid p 2131 Canadian Civil Liberties Association and the National Union of Public and General Employees G20 Toronto Breach of the Peace Public Hearings February 2011 online Canadian Civil Liberties Association lthttpcclaorgwordpresswp-contentuploads201102Breach-of-the-Peace-Final-Reportpdfgt
21
2 The Ontario Ombudsman Report
The Ontario Ombudsman commenced an investigation after receiving complaints relating
to a variety of issues concerning the G20 The Marin Report recognized that ldquotypically
international summits attract protests and protests can turn violent and even deadlyrdquo32
The report therefore does not quarrel with the requirement that a high level of security is
required for such events
The report in my view accurately describes the PWPA as ldquounique in Canada in terms of
the breadth of its reach and the powers it confershellipno other Canadian statute defining
lsquopublic worksrsquo contains provisions similar to those found in Ontariorsquos Actrdquo33
32 Ontario Ombudsman report Investigation into The Ministry of Community Safety and Correctional Servicesrsquo Conduct in Relation to Ontario Regulation 23310 under the Public Works Protection Act ldquoCaught in the Actrdquo by Andreacute Marin (Toronto Ombudsman of Ontario December 2010) online Ombudsman of Ontario lthttpwwwombudsmanoncamedia157555g20final1-enpdfgt (ldquoMarin Reportrdquo) at para 733 Ibid at para 97
22
SECTION 4 POWERS OF THE POLICE
Pursuant to the Terms of Reference I have been asked to consider for future purposes
whether the powers given to peace officers and guards under the PWPA are necessary to
protect public works secure intergovernmental conferences or for any other purposes
To answer that question it is necessary to assess whether the current common law and
statutory regime provide the police with sufficient powers to perform these vital services
A Common Law Powers and Powers Pursuant to Police Services Acts
The police have extensive common law powers that can be used in protecting and
securing intergovernmental conferences and in protecting public works It is necessary to
examine those powers in order to assess whether and what if any additional powers are
needed such as those provided by the PWPA
Of particular assistance in this regard is R v Knowlton34 where the Supreme Court of
Canada considered whether the powers possessed by peace officers at common law and
statute in securing an area for the protection of a foreign dignitary were lawful The
Supreme Court of Canada held that in order for the exercise of peace officer powers to be
lawful the powers must satisfy the two step test set out in R v Waterfield35 First the
power must be in furtherance of a lawful duty Traditional common law peace officer
duties include the preservation of the peace and the prevention of crime These common
law police duties amongst others are now statutorily enshrined in s 42(1) of Ontariorsquos
Police Services Act (and other provincial police services acts)36 The second part of the
test requires an evaluation of whether the conduct of the peace officer was ldquojustifiedrdquo To
34 [1974] SCR 443 [ldquoKnowltonrdquo]35 See for example R v Dedman [1985] 2 SCR 236 RSO 1990 c P15
23
do so one applies the standard of what is reasonably necessary in light of the totality of
the circumstances In evaluating whether the conduct of the peace officer was justified it
is important to consider ldquothe duty being performed the extent to which some interference
with individual liberty is necessary in the performance of that duty the importance of the
performance of the duty to the public good the nature of the liberty being interfered with
and the nature and extent of the interferencerdquo37
In Knowlton police in Edmonton cordoned off an area as part of the security
arrangements for the visit of Premier Kosygin of the USSR Premier Kosygin had been
assaulted in Ottawa a few days prior to his visit to Edmonton Knowlton entered the
secured area questioning the power of the peace officer to prevent his entry He was
arrested without a warrant and charged with obstructing a peace officer in the execution
of his duties Knowlton argued that the peace officer did not have the power to prevent
his entry and was not acting in the execution of his duty
The Supreme Court of Canada emphasized the heightened importance of security when
there are visiting foreign dignitaries38
It is notorious and of common knowledge that the official visit of the head of state or high rank dignitary of a foreign country friendly as either may be is an event that frequently engenders a real or apprehended threat to the preservation of peace and that calls therefore for the adoption of proper and reasonable security measures in and by the host countryhellipThe restriction of the right of free access of the public to public streetshellipwas one of the steps--not an unusual one--which police authorities considered and adopted as necessary for the attainment of the purpose aforesaid In my opinion such conduct of the police was clearly falling within the general scope of the duties imposed upon them
37 R v Mann [2004] 3 SCR 59 at 7938 Supra note 34 at 447-448
24
In addressing the first part of the Waterfield test the Court referenced provisions of the
Alberta Police Act and the Criminal Code and concluded that the conduct of the peace
officers fell within the general scope of the duties imposed upon them for example
preservation of the peace and prevention of crime39
According to the principles which for the preservation of peace and prevention of crime underlie the provisions of s 30 amongst others of the Criminal Code these official authorities were not only entitled but in duty bound as peace officers to prevent a renewal of a like criminal assault on the person of Premier Kosygin during his official visit in Canada In this respect they had a specific and binding obligation to take proper and reasonable steps The restriction of the right of free access of the public to public streets at the strategic point mentioned above was one of the steps--not an unusual one--which police authorities considered and adopted as necessary for the attainment of the purpose aforesaid In my opinion such conduct of the police was clearly falling within the general scope of the duties imposed upon them
In analyzing the second step of the Waterfield test the Court concluded that there was no
evidence indicating the police officers resorted to an unjustifiable use of the powers
associated with the duties imposed on them
The Court in Knowlton recognized broad police powers to cordon off areas as part of the
security arrangements involving internationally protected persons In addition the Court
found that the warrantless arrest in that case was not an unjustifiable or unreasonable use
of powers associated with the police duties to preserve the peace order public safety and
to enforce the law and prevent crime Finally the Court found that peace officers were
duty bound ldquoto prevent a renewal of a like criminal assault on the person of Premier
Kosygin during his official visit in Canadardquo40 Furthermore it stated the closing of public
39 Ibid 40 Ibid at 447
25
streets ldquowas one of the steps -- not an unusual one -- which police authorities considered
and adopted as necessaryrdquo41
The Knowlton decision clearly acknowledged that the police had the duty and authority to
establish and enforce a secured area to protect a foreign dignitary In order to carry out
these duties the police may do what is reasonably necessary in light of the totality of the
circumstances
Though Knowlton was decided prior to the enactment of the Canadian Charter of Rights
and Freedoms (the ldquoCharterrdquo) this does not in my view affect the clear statement by the
Supreme Court of Canada regarding the duty of the police under the common law and the
Alberta Police Act to provide this security While the facts of Knowlton were quite
compelling in relation to the obvious need to provide adequate security for Premier
Kosygin the decision is equally important authority regarding the general responsibilities
of the police at common law and statute in relation to the preservation of the peace
B Other Statutory Powers
1 Criminal Code
Some specific powers are provided to peace officers pursuant to the Criminal Code42
Section 31 gives peace officers the power to arrest an individual for breach of the peace
Peace officers can arrest those committing the breach of the peace or those who on
reasonable grounds heshe believe are about to join in or renew the breach of the peace
Peace officers also have powers at their disposal under ss 63-69 of the Criminal Code to
deal with the offences of unlawful assembly and riots
41 Ibid at 447-448 42 RSC 1985 c C-46
26
2 Trespass to Property Act
The Ontario Trespass to Property Act43 is a potential source of police power to arrest
without warrant those who are unlawfully on certain premises or who were recently
unlawfully on the premises and refuse to give their name and address44 This statute
deals with illegal entry into both private and public property by creating the offence of
trespass for those who without the express permission of the occupier enter on to
premises or engage in an activity on the premises when it is prohibited by the statute45
Though this statute is primarily used by private property owners to keep unwanted people
off of their property it has also been invoked by the Speaker of the House46 and by the
City of Toronto47 It must be noted however that using the Trespass to Property Act in
relation to removing individuals from ldquopublicrdquo places may raise Charter issues48
3 Foreign Missions and International Organizations Act
The RCMP as peace officers have the general duty to preserve the peace and prevent
crime and offences as set out in s 18 of the Royal Canadian Mounted Police Act49
Additional duties found in s 17 of the Royal Canadian Mounted Police Regulations
198850 include the protection of ldquointernationally protected personsrdquo as defined in s 2 of
the Criminal Code Internationally protected persons include heads of state and their
43 RSO 1990 c T2144 Ibid ss 9(1) 1045 Ibid s 2(1)46R v Behrens [2004] OJ No 5135 (CJ) The Court held that the issue of the trespass notices fell under the Speakerrsquos parliamentary privilege and were not reviewable even on the basis of a Charter argument47R v Semple [2004] OJ No 2137 (CJ)48 In R v Semple the defendants were charged under the Ontario Trespass to Property Act for entering the grounds of Toronto City Hall after being banned from doing so In the end the Court held that the defendantsrsquo peaceful entry onto the grounds was an expression as per s 2(b) of the Charter Torontorsquos notice under the Act infringed on this freedom and in these circumstances it could not be justified under s 1 of the Charter 49 RSC 1985 c R-1050 SOR88-361
27
family members The RCMPrsquos duty to protect internationally protected persons is also
found in s 6(1) of the Security Offences Act51
In addition Canada is a signatory of the United Nations Convention on the Prevention
and Punishment of Crimes against Internationally Protected Persons including
Diplomatic Agents52 This Convention provides that the Government of Canada must
protect visiting heads of state or government foreign ministers representatives or
officials of a state or any official or other agent of an international organization of an
intergovernmental character and the family members that accompany him or her The
RCMP has the responsibility to carry out these security measures
Pursuant to s 101(1) of the FMIOA ldquoThe Royal Canadian Mounted Police has the
primary responsibility to ensure the security for the proper functioning of any
intergovernmental conference in which two or more states participate that is attended by
persons granted privileges and immunities under this Act and to which an order made or
continued under this Act appliesrdquo
The powers to carry out this mandate are found in s 101(2) of the FMIOA ldquothe Royal
Canadian Mounted Police may take appropriate measures including controlling limiting
or prohibiting access to any area to the extent and in a manner that is reasonable in the
circumstancesrdquo It is noteworthy that the FMIOA has legislated the same powers
provided to the police under common law and statute
In order to trigger the RCMP powers described in s 101 the Governor in Council on the
51 RSC 1985 c S-752 UNGA Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons including Diplomatic Agents 20 February 1977 UN Doc I-15410
28
recommendation of the Minister of Foreign Affairs and pursuant to s 5 of the FMIOA
made the G8 Summit Privileges and Immunities Order 201053 on December 10 2009
This order was repealed and a subsequent order54 was made on January 13 2010 A
similar order55 for the G20 Summit was made on March 11 201056
Therefore during the G20 the RCMP had the specific statutory power to limit or
prohibit access to any area and to any extent as long as the measures were appropriate
and done in a manner that was reasonable in the circumstances ldquoThe RCMP may secure
the perimeter of the security zone on land with fencing and restrict access to this zone
through the use of checkpoints and other measuresrdquo57
Though not invoked during the G20 s 101(4) of the FMIOA provides that arrangements
can be entered into with a province concerning the responsibilities of members of the
RCMP and members of the provincial and municipal police forces with respect to
ensuring the security for the proper functioning of an intergovernmental conference No
information was provided to me as to why such an arrangement was not entered into for
the G20
These intergovernmental security provisions of the FMIOA were enacted just prior to the
G8 being held in Kananaskis Alberta in 2002 In light of violent protests at international
events and the 911 terrorist attacks in the United States the Federal Government
53 SOR2009-33654 SOR2010-1355 SOR2010-6256 Supra note 17 ldquoUpon such an Order being made the RCMP in co-operation and collaboration with other police forces becomes impressed with the primary responsibility of ensuring not only the protection of the IPPs but also ensuring lsquosecurity for the proper functioningrsquo of the intergovernmental conference To that end the FMIOA provides that the lsquoappropriate measures including controlling limiting or prohibiting access to any area to the extent and in a manner that is reasonable in the circumstancesrsquo may be takenrdquo57 Ibid
29
considered it timely ldquoto clarify in statute the present common law authority for police to
provide security and protection for high profile international eventsrdquo58 At such events it
was intended that ldquothe RCMP is the lead to make sure that security is providedrdquo59
Given that it was clearly the intention of the Federal Government to have the RCMP as
the lead police force at these international events consideration should be given to
expand the use of the FMIOA to cover all large scale international events such as the
Olympics the Pan American Games and international trade fairs as these events are
routinely attended by heads of state and senior government officials Most recently
Vancouver held the 2010 Olympic and Paralympic Winter Games60 Though federal and
municipal legislation were passed to assist in securing the Games expansion and
application of the FMIOA would have been a better approach The RCMP as the national
police force ought to be in charge pursuant to their authority under the FMIOA
4 Emergency Legislation
Through my consultations with the parties listed in Appendix 2 I heard that while we are
not in a time of war as in 1939 when the PWPA was enacted we live in an age of
international and local terrorism threats Our democratic society must be vigilant in
58 Canada House of Commons Debates 37th Parl 1st Sess No 93 (5 October 2001) at 100059 Canada House of Commons Standing Committee on Public Safety and National Security 40th Parl 3rd
Sess Evidence (25 October 2010)60 In anticipation of this event the Governor General in Council on the recommendation of the Minister of Transport pursuant to the Aeronautics Act (RSC 1985 c A-2) and the Canadian Air Transport Security Authority Act (SC 2002 c 9 s 2) passed the Vancouver 2010 Aviation Security Regulations (SOR2009-298) The purpose of the regulations was to enhance aviation security during the Games The Regulation provided for extra security and extra authorized means to conduct screenings In addition the Vancouver City Council passed the very lengthy By-law No 9962 known as the ldquoVancouver 2010 Olympic and Paralympic Winter Games By-Lawrdquo Specific security measures to be employed at a city live site (described thoroughly in a Schedule to the By-Law) that were enabled by this By-Law included The installation and monitoring of airport style and other security measures including magnetometers and X-ray machines the installation and monitoring of closed circuit television cameras the searching of any person who wished to enter on to a city live site and any bag luggage or other container carried by such person and the prohibiting of access to or removal from a city live site any person who refused to submit to a search
30
maintaining a proper level of security while recognizing that democratic values and
security issues can conflict where public order is at issue It is important to highlight that
provincial legislation exists dealing with both terrorism threats and emergency situations
I have been informed that federal and provincial counter-terrorism plans exist that
address preventing and responding to acts of terrorism
The Police Services Act regulations mandate police forces to establish procedures
consistent with federal and provincial counter-terrorism plans61 and to have policies with
respect to counter-terrorism62 In addition the Emergency Management and Civil
Protection Act allows for orders to be made in situations specifically designated an
ldquoemergencyrdquo63 by the Lieutenant Governor in Council or the Premier that regulate or
prohibit travel and movement to from or within any specified area64 Therefore the
PWPA is not needed to deal with these emergency situations as specific more recent
emergency legislation is in place for that very purpose
C Gaps in Canadian Police Powers
The Ministry of Community Safety and Correctional Services provided me with an
interesting article published in 2010 entitled ldquoThe Gap in Canadian Police Powers
61 Adequacy and Effectiveness of Police Services O Reg 399 s 2862 Ibid s 2963 Section 1 of the Emergency Management and Civil Protection Act defines an ldquoemergencyrdquo as ldquoemergencyrdquo means a situation or an impending situation that constitutes a danger of major proportions that could result in serious harm to persons or substantial damage to property and that is caused by the forces of nature a disease or other health risk an accident or an act whether intentional or otherwise (ldquosituation drsquourgencerdquo)64 RSO 1990 c E9 s 702(4)
31
Canada needs lsquoPublic Order Policingrsquo Legislationrdquo and co-authored by Wesley Pue and
Robert Diab65
This article was prompted by the debate over the cost nature and extent of security to be
employed at the Vancouver 2010 Winter Olympics The authors criticized the fact that
policing authorities in Canada ldquolack specific statutory authorization to take measures
commonly thought necessary to their missionrdquo66 These measures included security
fences in public areas designated protest areas restricted access to public space police
surveillance and searches without cause
The authors recognize that such powers may be necessary but note that ldquono legislature
has ever expressly conferred such powers on policing authorities outside the context of
international intergovernmental conferences Nor does the common law accord such
powers to state officials on its ownrdquo67 I respectfully disagree with this latter statement
It is my view the police have powers pursuant to the common law and statute as I have
discussed in the preceding section
The authors referred to R v Knowlton68 which I have previously discussed While the
authors give Knowlton a very narrow interpretation stating that ldquoits binding principle is a
good deal narrower than the words taken out of context might suggestrdquo69 I however am
of the view that the decision supports the proposition that police have a broad range of
65 Wesley Pue and Robert Diab ldquoThe Gap In Canadian Police Powers Canada Needs lsquoPublic Order Policingrsquo Legislationrdquo (2010) 28 Windsor Rev Legal Soc Issues 87 Wesley Pue is a professor of legal history at the University of British Columbia and Robert Diab is a PhD candidate at the UBC Faculty of Law66 Ibid p 8867 Ibid68 Supra note 3469 Supra note 65 p 92
32
responsibilities with deep historical roots in the common law and codified in statute a
position shared by the Federal Government when it introduced amendments to the
FMIOA The actions of the police in Knowlton were necessarily incidental to their
common law police duties and powers
The authors conclude that this ldquoauthority of police to create zones of exclusion either as
an incident of the general and ancient duties of constableshelliphas never been established in
the courtsrdquo70 I am of the view however that the role of the police in establishing
security zones relating to a crime a serious accident or other emergency is a routine and
well-accepted use of police powers pursuant to their common law and statutory duties I
am not suggesting that this common law authority permits the police to establish security
zones ldquofor the proper functioning of any intergovernmental conference in which two or
more states participaterdquo71 larger than necessary to fulfill their purpose The FMIOA as
amended in 2002 provides the RCMP with ldquoprimary responsibility to ensure the security
for the proper functioning of the intergovernmental conferencerdquo72 It is interesting
however that when the Federal Government was enacting this specific authority the
legislative debates indicated that the government was merely clarifying ldquoin statute the
present common law authority for police to provide security and protection for high
profile international eventsrdquo73
Security perimeters are routinely erected by police in the context of the commission of a
crime motor vehicle and other accidents as well as the Santa Claus parade and other
70 Ibid p 9671 Supra note 8 s 101(1)72 Ibid73 Supra note 58
33
parades It would in my view be quite impractical and unnecessary to legislate an
extensive code of police powers given their common law and statutory responsibilities to
generally maintain public order It is not advisable in my opinion to be prescriptive in
any way regarding what actions the police can take since they must assess what the
situation warrants while at the same time considering individual rights and freedoms
The details of any police response to an emergency must be tailored to the exigencies
related to the situation
The police clearly have common law and statutory authority to conduct warrantless
searches in specific situations (ldquoin exigent circumstancesrdquo)74 However when
warrantless searches must be carried out on a regular routine basis the police are acting
more like full time security guards and there should be specific statutory authority
provided to give such powers
I certainly accept the general proposition the authors assert that the mobility rights of
citizens should not be unreasonably or unfairly dealt with However one only need be
aware of the massive amount of construction taking place on the streets of Toronto as this
Report is being written to appreciate that it is not always reasonable to expect that ldquothe
rights of businesses homeowners and ordinary citizens to go about their routine
activities without interruptionrdquo75 will go unhindered While generally desirable it cannot
be legally guaranteed At the same time the authors do concede that ldquoimportant as they
74 Supra note 42 s 4871175 Supra note 65 p 89
34
are the rights of assembly movement and protest are not unqualified They can ndash and
should ndash be balanced against other important public needsrdquo76
In my view public policing at times requires innovation as it often benefits from
creative problem solving If police abuse their common law powers related to ldquopublic
order policingrdquo they are accountable to a multiplicity of authorities and the rule of law
most particularly the Charter The legal rights outlined in the Charter such as ldquothe
principles of fundamental justicerdquo77 security ldquoagainst unreasonable search and seizurerdquo78
and ldquothe right not to be arbitrarily detained or imprisonedrdquo79 are described very
generally However they were chosen deliberately as it was recognized that in each case
there is an inherent tension between imposing security measures and fundamental rights
and freedoms Determining which is paramount will be based on the facts of each case
76 Ibid p 9177 Canadian Charter of Rights and Freedoms s 7 Part I of the Constitution Act 1982 being Schedule B to the Canada Act 1982 (UK) 1982 c 1178 Ibid s 879 Ibid s 9
35
SECTION 5 LEGAL ANALYSIS OF THE PUBLIC WORKS PROTECTION ACT
A Legal Analysis of the Legislation
Many stakeholders have questioned the constitutional validity of the PWPA and O Reg
23310 The Ontario Ombudsman seriously questioned whether O Reg 23310 could
pass ldquoconstitutional musterrdquo80 The CCLA suggested that the broad police powers
granted under the PWPA were inconsistent with the Charter81
To the same effect were comments made by Premier Dalton McGuinty who described
the PWPA as ldquoan archaic law that was used to undermine Torontoniansrsquo civil rights
during the G20rdquo82 He elaborated83
The issue is whether itrsquos appropriate given our present-day values and given an old law which I am confident doesnrsquot strike the balance that you and I would want today in terms of public safety and individual freedom of expressionhellipWhen you start talking about civil rights individual freedoms yoursquore talking about those things that in fact define us as a free and democratic societyhellipItrsquos something that is real and meaningful and important to all of us
The Terms of Reference for this Review do not require that I conduct a constitutional
analysis of the PWPA I have however been asked to consider areas for reform and if
appropriate make specific recommendations for amendment or repeal This does require
that I therefore consider whether the legislation may be vulnerable to constitutional
challenge
Section 2(b) of the Charter guarantees everyone the fundamental freedom of expression
The definition of ldquoexpressionrdquo has been interpreted broadly ldquoActivity is expressive if it
80 Supra note 32 at para 23381 Supra note 26 p 982 Robert Benzie and Rob Ferguson ldquoMcGuinty shifts focus to fixing G20 lawrdquo Toronto Star (10 December 2010) online thestarcom lthttpwwwthestarcomnewscanadaarticle905436--mcguinty-shifts-focus-to-fixing-g20-lawgt 83 Ibid
36
attempts to convey meaningrdquo84 While freedom of expression is not absolute there is
very little that is not considered expression However expression that advocates violence
is not protected under s 2(b)85
The Supreme Court of Canada in Committee for the Commonwealth of Canada v
Canada held that s 2(b) ldquodoes not encompass the right to use any and all government
property for purposes of disseminating onersquos views on public matters but I have no doubt
that it does include the right to use for that purpose streets and parks which are dedicated
to the use of the public subject no doubt to reasonable regulation to ensure their
continued use for the purposes to which they are dedicatedrdquo86 It seems clear that
protesting in public streets is a form of expression protected by s 2(b) Protesting at an
intergovernmental conference is clearly expressive in nature
In challenges alleging that a statute contravenes s 2(b) of the Charter a court would
examine whether the purpose or effect of a law contravenes section 2(b)87 There is no
reason to suggest that the purpose of the PWPA was to infringe the freedom of
expression The purpose of the PWPA is to protect important public infrastructures A
court would then have to consider whether the effect of the PWPA may have resulted in
an infringement of freedom of expression
O Reg 23310 defined significant portions of downtown Toronto as a ldquopublic workrdquo
Section 3(c) of the PWPA allows peace officers to refuse entry into public works which
therefore limits the areas in which protesters could express themselves By creating the
84 Irwin Toy Ltd v Queacutebec (Attorney General) [1989] 1 SCR 927 at 96885 Ibid at 97086 [1991] 1 SCR 139 at 165-16687 Peter Hogg Constitutional Law of Canada loose-leaf (consulted on 7 January 2011) 5th ed (Toronto Thomson Reuters Canada Limited 2007) at 43-6
37
relatively large security perimeter designated by the regulation individuals may allege
they were not permitted to communicate directly with those they were protesting against
Furthermore individuals could not communicate in public places such as public streets
where the right to freedom of expression has previously been found to exist88
Commissioner Ted Hughes completed an interim report following a public hearing into
the complaints regarding events that took place with respect to the Asia Pacific Economic
Cooperation (APEC) Conference in Vancouver British Columbia in November 1997
Commissioner Hughes recommended that generous opportunity should be afforded to
peaceful protesters to be seen in their protest activities by guests at the event89
Section 7 of the Charter provides that ldquoEveryone has the right to life liberty and security
of the person and the right not to be deprived thereof except in accordance with the
principles of fundamental justicerdquo The PWPA raises issues regarding the liberty and
security of the person in providing for warrantless searches and stopping for
identification Furthermore vague laws offend two fundamental values of our legal
system90 Firstly individuals are not provided with sufficient guidance as to what
behaviour a law prohibits Secondly those in charge of enforcing the law are not
provided with clear guidance as to how to enforce it A vague law can lead to inconsistent
and arbitrary enforcement91
88 Supra note 86 89 Canada Commission for Public Complaints Against the RCMP APEC ndash Commission Interim Report (31 July 2001) at s 3111 (Commissioner Ted Hughes QC) online Commission for Public Complaints Against the RCMP lthttpwwwcpc-cppgccaprrrepphrapecapec-31-engaspxgt90 Supra note 87 at 47-60 91 ldquoA vague provision does not provide an adequate basis for legal debate that is for reaching a conclusion as to its meaning by reasoned analysis applying legal criteria It does not sufficiently delineate any area of risk and thus can provide neither fair notice to the citizen nor a limitation of enforcement discretion Such
38
As described by Professor Hogg92
The requirement that any limit on rights be prescribed by law reflects two values that are basic to constitutionalism or the rule of law First in order to preclude arbitrary and discriminatory action by government officials all official action in derogation of rights must be authorized by law Secondly citizens must have reasonable opportunity to know what is prohibited so that they can act accordingly Both these values are satisfied by a law that fulfils two requirements (1) the law must be adequately accessible to the public and (2) the law must be formulated with sufficient precision to enable people to regulate their conduct by it and to provide guidance to those who apply the law
As I stated earlier the phrase ldquoany approach theretordquo contained in s 3(a) of the PWPA is
potentially vague No criteria are provided to assist in determining when one is on ldquoany
approach theretordquo A phrase such as ldquoany approach theretordquo is subject to many potential
interpretations It is arguable that this language does not provide reasonable guidance for
individuals to obey the law and for the law to be consistently enforced
Section 8 of the Charter provides that ldquoEveryone has the right to be secure against
unreasonable search or seizurerdquo A warrantless search or seizure is only reasonable if the
search was authorized by law the law itself is reasonable and the manner in which the
search carried out was reasonable93 The fact that no reasonable or probable suspicions
are needed to carry out a search pursuant to s 3(b) of the PWPA raises some issues The
only prerequisite to such a search is that the person or vehicle being subjected to a search
is entering or attempting to enter a public work
a provision is not intelligible to use the terminology of previous decisions of this Court and therefore it fails to give sufficient indications that could fuel a legal debaterdquo (R v Nova Scotia Pharmaceutical Society [1992] 2 SCR 606 at 639-640) 92 Supra note 87 at 38-1293 R v Nolet [2010] SCJ No 24 at para 21
39
Whether the PWPArsquos s 3(b) authority to undertake warrantless searches is ldquoreasonablerdquo
depends on the reasonableness of the impact on the subject of the search ldquoThe
individuals reasonable expectation of privacy must of course be balanced against the
public interest in effective law enforcementrdquo94 It is harder to justify a warrantless search
where the reasonable expectation of privacy is higher For example interference with
bodily integrity will raise the standard of reasonableness Conversely in situations where
people expect to have a lower level of privacy the standard to prove reasonableness is
lower
One rightfully has some expectation of privacy when in public but it does not rise to the
level of privacy that one expects in onersquos home The expectation of privacy further
decreases when one attempts to enter a ldquopublic workrdquo especially in the context of a
secured barrier to an intergovernmental conference
Section 9 of the Charter provides that ldquoEveryone has the right not to be arbitrarily
detained or imprisonedrdquo95 Under s 3(a) of the PWPA a person entering or attempting to
enter or approach a public work must provide his or her name and address and state the
purpose for which he or she desires to enter the public work In order for a guard or
peace officer to carry out this duty the guard or peace officer may ldquostoprdquo the person from
further approaching or entering the public work and the person is not permitted under the
statute to decide not to enter By so doing it is arguable the guard or peace officer has
assumed control over the movement of the individual by a demand or direction The
94 R v Rao [1984] OJ No 3180 at para 79 (CA)95 ldquoDetention under s 9hellipof the Charter refers to a suspension of the individualrsquos liberty interest by a significant physical or psychological restraint Psychological detention is established either where the individual has a legal obligation to comply with the restrictive request or demand or a reasonable person would conclude by reason of the state conduct that he or she had no choice but to complyrdquo (R v Grant [2009] SCJ No 32 at para 44)
40
PWPA provides for a significant legal consequence if the demand or direction is not
followed since ldquoEvery person who neglects or refuses to comply with a request or
direction made under this Act by a guard or peace officer and every person found upon a
public work or any approach thereto without lawful authority the proof whereof lies on
him or her is guilty of an offence and on conviction is liable to a fine of not more than
$500 or to imprisonment for a term of not more than two months or to bothrdquo96
Pursuant to s 3(b) of the PWPA a guard or peace officer may search any person entering
or attempting to enter a public work These searches would necessitate the detention of a
person If a guard or peace officer performs such a search he or she has taken control
over the movement of the person by a demand or direction The same serious legal
consequence results from failing to obey this demand or direction as that which results
from failing to obey the demand or direction pursuant to s 3(a) of the PWPA As a
result ldquodetentionsrdquo could occur pursuant to both s 3(a) and s 3(b) of the PWPA
The question that would need to be addressed in any challenge to the PWPA is whether
the detentions permitted by the PWPA are arbitrary in nature The use of the term ldquoany
approach theretordquo is vague and imprecise A person could be deemed to be on ldquoany
approach theretordquo a great distance from the entrance of a public work and their detention
might very well be arbitrary In addition the fact that the guards and peace officers
determine the boundaries of the ldquoapproachesrdquo which cannot be contested seems
arbitrary as well as who they chose to search
96 It should be noted that not all communications with state authorities and police officers will amount to a detention The question is whether a person may reasonably believe that he or she is free to refuse to comply
41
Section 11(d) of the Charter provides that ldquoAny person charged with an offence has the
right to be presumed innocent until proven guilty according to law in a fair and public
hearing by an independent and impartial tribunalrdquo This requires that the Crown have the
burden of proving the guilt of an individual charged with an offence97 Provisions that
place the burden on the accused to disprove on the balance of probabilities an essential
element of an offence raises s 11(d) concerns because convictions would be possible
even if reasonable doubt existed98 The presumption of innocence is not only infringed
upon by a requirement that an accused disprove an essential element of an offence but
also any requirement on an accused to prove a fact on the balance of probabilities to
avoid conviction
Section 5(1) of the PWPA states that ldquoEvery person who neglects or refuses to comply
with a request or direction made under this Act by a guard or peace officer and every
person found upon a public work or any approach thereto without lawful authority the
proof whereof lies on him or her is guilty of an offence and on conviction is liable to a
fine of not more than $500 or to imprisonment for a term of not more than two months or
to bothrdquo For the offence of being found upon a public work or on any approach to a
public work without lawful authority the burden of proof has been ldquoshiftedrdquo from the
Crown to the accused to prove lawful authority
As the foregoing analysis reveals there are certainly many concerns that arise when one
places the PWPA under the lens of the Charter However the rights and freedoms
provided by the Charter are not absolute They are ldquosubject only to such reasonable
97 R v Oakes [1986] 1 SCR 10398 Ibid at 132
42
limits prescribed by law as can be demonstrably justified in a free and democratic
societyrdquo99
In assessing whether a law which infringes the Charter is saved by s 1 a court examines
both the object of the law and the measures taken to achieve that objective A lawrsquos
objective achieves the status of being sufficiently important to justify overriding a
Charter right only when it is consistent with the values of a free and democratic society
The objective must relate to pressing and substantial concerns and not concerns that are
trivial and must be focussed on ldquothe realization of collective goals of fundamental
importancerdquo100 The measures adopted must be ldquorationally connectedrdquo to the objective of
the law101 The measures ldquoshould impair lsquoas little as possiblersquo the right or freedom in
questionrdquo102 Furthermore there must be ldquoa proportionality between the effects of the
measures which are responsible for limiting the Charter right or freedom and the
objective which has been identified as of lsquosufficient importancersquordquo103
An issue that may affect whether the potential limitation on rights and freedoms of the
PWPA and O Reg 23310 were ldquoprescribed by lawrdquo is whether the regulation was
adequately accessible to the public The Ontario Ombudsman the CCLA and the Ontario
Bar Association (ldquoOBArdquo) all noted a lack of notice regarding O Reg 23310 and its
effects prior to and during the G20 While the text of the regulation was available prior
99 Charter s 1 The Superior Court of Quebec decision of Tremblay v Queacutebec (Attorney General) [2001] JQ No 1504 (CS) involved an interim injunction brought by an applicant who was denied entry into the secured perimeter during the 2001 Summit of the Americas in Queacutebec City The applicant sought an injunction to either eliminate the security barrier or to be given a pass to let him within the secured perimeter Even though the Court held that the erection of the security zone violated the applicantrsquos right to freedom of expression and peaceful assembly The court held that the infringement was ldquodemonstrably justified in a free and democratic societyrdquo100 Supra note 97 at 136101 Ibid at 139102 Ibid103 Ibid
43
to the G20 it was only available on a website not frequently accessed by the public
Since O Reg 23310 was not published in The Ontario Gazette until after it was
revoked it may be that the regulation was not adequately accessible to the public
Reverse onus offences have been found to be ldquorationally connectedrdquo when there is plainly
a rational connection between the proven fact and the fact to be presumed Reverse
onuses have also been upheld when the burden placed on the Crown would be virtually
impossible to meet (such as proving sanity)104 Even if the accused only has the burden
of disproving the fact that heshe did not have lawful authority to be in a public work or
on an approach thereto there may not be a rational connection between the proven fact
and the fact to be presumed
The history of threats and violence at previous intergovernmental conferences
demonstrated that the protection of G20 participants was a pressing and substantial
concern However given the broadness of the PWPA every exercise of it raises the
potential for Charter scrutiny
Recommendation
Given the public policy considerations I have raised regarding the PWPA and Charter
concerns that could arise I recommend that the PWPA be repealed after the Province has
considered potential policy and security gaps as a result of its repeal
B Other uses of the Public Works Protection Act
It appears from my consultations with stakeholder groups that if the PWPA is repealed
104 R v Chaulk [1990] 3 SCR 1303 at 1340
44
there are two areas which may require legislation to provide specific peace officer
powers These two areas are court security and the protection of nuclear power facilities
and other power generating infrastructures
1 Court Security
During my decade as Ontariorsquos Attorney General (1975 to 1985) there were three
murders in provincial courthouses as well as many threats to members of courthouse staff
and others As violent acts in courthouses can be anticipated courtroom security is often
required
Individuals are compelled to go to court for a variety of reasons such as appearing as an
accused as a witness or for jury duty To provide protection to those who work there or
are compelled to attend an adequate level of court security may require a search without
warrant of each and every individual who seeks to enter a courthouse It is not reasonable
to require prior judicial authorization for each search that takes place
The courts have considered the constitutionality of these provisions of the PWPA in
conjunction with section 137 of the Ontario Police Services Act in the context of court
security
Section 137 of the Ontario Police Services Act imposes a responsibility on municipal
police services boards to secure the premises where court proceedings are conducted and
includes
1 Ensuring the security of judges and of persons taking part in or attending proceedings
45
2 During the hours when judges and members of the public are normally present ensuring the security of the premises
3 Ensuring the secure custody of persons in custody who are on or about the premises including persons taken into custody at proceedings
4 Determining appropriate levels of security for the purposes of paragraphs 1 2 and 3
In R v Campanella105 Ms Campanella was attending the John Sopinka Courthouse in
Hamilton At the courthouse there were signs posted stating that those who entered
would be searched for weapons When Ms Campanellarsquos bag was searched marijuana
was found and she was charged with the possession of marijuana She argued that her s
8 Charter protection against unreasonable search and seizure had been violated and the
marijuana discovered during the search should therefore be excluded as evidence The
trial judge and the summary convictions appeal court rejected the section 8 Charter
argument and the appellant appealed to the Ontario Court of Appeal
The Ontario Court of Appeal agreed that ldquogiven the importance of the government
objective and the context in which these searches take place it is reasonable to authorize
warrantless searches of those entering courthouse facilitiesrdquo106 The Court stated ldquothe
only effective way to diminish the risk in a large courthouse is to subject everyone
without prior security clearance to some kind of inspection I can see no other feasible
means of achieving the aimrdquo107
The Court also pointed out the concern relating to the erosion of the benefits and
105 [2002] OJ No 5104 (SCJ) affrsquod [2005] OJ No 1345 (CA) [ldquoCampanellardquo]106 R v Campanella [2005] OJ No 1345 at para 17 (CA)107 Ibid at para 19
46
protections conferred by s 8 of the Charter108
I am sensitive to the concern that we should not erode the benefits and protections of s 8 by gradually sanctioning ever-greater intrusions into privacy because of unfounded fears We should not lightly accept that searches in public places are justified solely because people have become used to them and expect them However the record in this case establishes the justification for the kinds of searches carried out in this case
Ultimately the appeal was dismissed and s 137 of the Police Services Act and s 3(b) of
the PWPA) were held to comply with s 8 of the Charter109
In its consultations with me the OBA similarly stated that the existing nature of court
security is necessary and is generally ldquowell toleratedrdquo At the same time however it
submits that the security regime should not be ldquoshoehornedrdquo into the PWPA regime and
that it would be preferable to provide a legislative framework tailored for the specific
security requirements While the PWPA has been relied upon as support for the exercise
of powers by the police in providing court security the OBA submits that the PWPArsquos
ldquosingle security schemerdquo which declares something a ldquopublic workrdquo is an ldquoawkward
blunt instrument in a world where more specialized tools are necessaryrdquo When
warrantless searches are being done on a routine basis it is advisable to have specific
legislation providing peace officers with such power
Recommendation
Court security legislation is currently in place in many jurisdictions across Canada and
contain provisions that permit warrantless searches of persons wanting to access a
108 Ibid at para 25109 The Court in R v SS [2005] OJ No 5002 (SCJ) agreed with the findings and rationale of the Court of Appeal in Campanella
47
courthouse The constitutional validity of such legislation in Manitoba was upheld by that
provincersquos highest court110
Given the ongoing need for warrantless searches at courthouses the Province of Ontario
should consider specific court security legislation in Ontario to support the security
measures in our courthouses if the PWPA is to be repealed taking into consideration the
responsibilities of the municipal police services boards provided in s 137 of the Police
Services Act This legislation should only be passed after proper notice consultation and
legislative debate
2 Power Generating Infrastructures
It is clear from the submissions that I received from representatives of OPG and the
Canadian Nuclear Safety Commission (ldquoCNSCrdquo) that the PWPA currently plays a role in
providing security officers with the powers to secure power generating infrastructures
including the ability to carry firearms and the ability to stop and require identification
from those in proximity to those nuclear plants
Security is of the utmost importance in protecting a nuclear power plant Members of the
public do not need to access a nuclear or similar power facility unless employed at the
facility or carrying out work for the facility111
The security of areas within nuclear power plants is governed by the Nuclear Security
110 R v Lindsay [2004] MJ No 380 (CA) 111 Though the discussion focuses on nuclear power plants I have been informed that other power generating infrastructures use the PWPA to designate their security officers as guards As a result if the PWPA is repealed it will be necessary to broaden the consultations in relation to these other power generating infrastructures
48
Regulations112 Every nuclear power plant must be located within a ldquoprotected areardquo113
This protected area is the area within a fenced perimeter which is alarmed and
continually patrolled This area must be equipped with devices that employ two
independent systems to detect intrusion into the area114 The Nuclear Security
Regulations also provide detailed specifications for the barrier which must enclose the
protected area115 In addition licensees must ldquoidentify all vital areas and implement
physical protection measures ndash including access control and measures designed to delay
unauthorized accessrdquo116
The Nuclear Security Regulations also provide detailed provisions regarding entry into
protected areas No person can ldquoenter a protected area without physical proof of the
recorded authorization of the licenseerdquo117 Further to this on entry into a protected area
ldquothat personrsquos identity shall be verified by two separate personnel identity verification
systems one of which is an access card reader and the other of which is a biometric
personnel identity verification devicerdquo118 Licensees must also ldquoensure that vehicle
portals are used for the entry and exit of land vehicles into and from a protected areardquo119
Physical protection measures are also required to reduce the chance of a forced land
vehicle entry into a protected area120
The power to conduct searches upon entry to a protected area is also provided by the
112 SOR2000-209 113 Ibid s 8114 Ibid s 11(a)(i)115 Ibid s 9116 Ibid s 141117 Ibid s 17(1)118 Ibid s 171119 Ibid s 91(1)120 Ibid s 91(4)
49
Nuclear Security Regulations Signs must be posted that are visible to people about to
enter the protected area stating that they must allow a nuclear security officer (ldquoNSOrdquo) to
ldquosearch them and everything in their possession including any land vehicle for weapons
and explosive substancesrdquo121 In addition when leaving the protected area people must
allow NSOs to ldquosearch them and everything in their possession including any land
vehicle for Category I II or III nuclear materialrdquo122 People are not permitted to enter or
leave a protected area unless these searches are carried out123 The Nuclear Security
Regulations provide for the method of search including ldquoa hand-held scanner a walk-
through scanner or any similar devicerdquo124 In addition if an NSO determines it
necessary a frisk search can be carried out by a person of the same sex125
I have been informed that the area outside of but adjacent to the ldquoprotected areardquo is
referred to as the ldquocontrolled areardquo This area includes roadways and waterways within
the nuclear facilityrsquos property boundaries adjacent to or in close proximity to the nuclear
power plantrsquos protected area and may be generally accessible to the public
As a result of the September 11 2001 terrorist attacks the Nuclear Security Regulations
were amended to require that high security nuclear facilities maintain an on-site armed
Nuclear Response Force (ldquoNRFrdquo)126 The NRF is composed of specialized NSOs
Section 32 of the Nuclear Security Regulations requires the NRF to be capable of making
an effective intervention taking into account the threat
121 Ibid s 27(1)(a)122 Ibid s 27(1)(b)123 Ibid s 27(2)124 Ibid s 27(5)(a)125 Ibid s 27(5)(b)126 Ibid s 32
50
Members of the NRF are mandated by the Nuclear Security Regulations to be ldquotrained in
the use of firearms authorized to carry firearms in Canada and qualified to use themrdquo127
However to satisfy this requirement the NRF resorts to the PWPA since the federal
regulations do not authorize the NRF to carry firearms without a licence However
under s 2(1) of the PWPA NSOs are designated as ldquoguardsrdquo with the powers of a peace
officer most significantly to carry and use firearms without having to be licensed128
Such a designation also enables the OPG to acquire and dispose of firearms
In the consultations I had with the OPG and the CNSC they advised me that NSOs
receive training equivalent to Canadian police standards and that NRF officers receive
training equivalent to federal and provincial police tactical team requirements
Another aspect of the PWPA used to secure nuclear power plants relates to powers
exercised by NSOs in ldquocontrolled areasrdquo The federal regulations do not provide the
NSOs with any power to demand identification within this area However pursuant to
the PWPA as appointed ldquoguardsrdquo the NSOs have the power to demand identity
verification in the controlled area They also have the authority to arrest anyone who
obstructs NSOs in the performance of their duties under the PWPA
In addition to using the PWPA to secure the controlled areas I have been advised by the
OPG that NSOs use powers pursuant to the PWPA to secure areas within 100 metres of a
nuclear facilityrsquos property line immediately adjacent to the controlled area These powers
are exercised under the broad language of the PWPA regarding ldquoapproaches to public
127 Ibid s 1 (on-site nuclear response force definition)128 Section 11707 of the Criminal Code exempts peace officers from licensing requirements for possessing firearms and other prohibited and restricted weapons
51
worksrdquo This is an illustration of the problem with the vagueness of this language in the
legislation As these powers are exercised on public land they could be challenged as a
potential infringement on individual rights and freedoms However I have been advised
that there have been no such incidents to date The need to ensure the security of these
facilities must be taken into the balance
NSOs must be able to monitor and control access to the controlled areas and areas close
to a nuclear power plantrsquos property line This provides for a more secure perimeter
around these facilities They need authority to challenge individuals acting in a suspicious
manner or conducting surveillance of nuclear facilities The OPG has informed me that
areas outside a nuclear facilityrsquos property line immediately adjacent to the controlled
area are still close enough to take advantage of the short distance to conduct intelligence
using high-powered surveillance equipment These nuclear power plants are not located
on isolated islands and are therefore vulnerable Both the Pickering Nuclear Generating
Station and the Darlington Nuclear Generating Station operate within major urban areas
being 30 km and 60 km east of downtown Toronto respectively I am advised that
previous events such as ldquoThe Toronto 18rdquo129 have shown that those intent on targeting
vital infrastructure such as power generating facilities often use reconnaissance and
intelligence gathering as precursor tactics
Recommendation
If the PWPA is to be repealed it is imperative that those who secure our nuclear and
power generating facilities be given the requisite specific legislative powers to do so
129 See for example ldquoLast 2 Toronto 18 accused found guiltyrdquo CBC News (23 June 2010) online cbcca lthttpwwwcbccanewscanadatorontostory20100623toronto-18-verdicthtmlgt
52
The source for these powers should be set out in the federal Nuclear Security
Regulations However if this is not a desired option the Government of Ontario must
consider specific legislation setting out the specific powers required to properly secure
these facilities and the specific location in which these powers can be exercised Such
legislation should not be passed without proper notice consultation and legislative
debate
53
SECTION 6 CONCLUSION
The PWPA was enacted in 1939 to support the war effort At the time the protection of
Ontariorsquos hydroelectric facilities from sabotage was of particular concern Since then the
PWPA has been used to provide the legal foundation for the powers exercised by the
police in providing court security and even more recently by the OPG in securing
nuclear power facilities In June 2010 the PWPA was used to provide powers to secure
intergovernmental conferences The vagueness of the PWPA permits it to be used in
situations when it is arguably not necessary and potentially abusive In my view the
PWPA has been used for purposes beyond its original intent
The time for the PWPA seems to have passed If the Government of Ontario enacts as I
have suggested specific legislation to provide for courthouse security and power
generating infrastructure security it would appear that there is no longer a need for the
PWPA I am also mindful of the existence of counter-terrorism and emergencies
legislation to deal with these situations as they arise
ldquoIn determining the boundaries of police powers caution is required to ensure the proper
balance between preventing excessive intrusions on an individualrsquos liberty and privacy
and enabling the police to do what is reasonably necessary to perform their duties in
protecting the publicrdquo130 The overly broad and vague language of the PWPA does not
strike this required balance with individual rights and freedoms
The late Justice Jackson of the United States Supreme Court stated that every
emergency power once conferred ldquolies about like a loaded weapon ready for the hand of
130 R v Clayton [2007] 2 SCR 725 at 742
54
any authority that can bring forward a plausible claim of an urgent needrdquo131 The need to
protect the public must be balanced with the requirement to preserve fundamental rights
and freedoms
Yet at the same time ldquoCanadians are entitled to demand the best public order policing
possible from their governmentrdquo132 There is no question that we live in a different world
post 911 We live in difficult times with constant threats both domestically and from
abroad The police clearly need to be given adequate powers to carry out their duties
The police use their expertise on a daily basis to assess the powers they require In
instances when they take action that exceeds their powers their actions are examined by
various mandated bodies This process I believe results in the proper balance between
police powers and individual rights and freedoms Therefore any legislation that purports
to grant special police powers must be specific and direct and developed in consultation
with stakeholders and tested through thorough debate in our transparent democratic
system
131 Korematsu v United States 323 US 214 (1944)132 Supra note 26 p 8
55
revoked on June 28 2010 It was not published in The Ontario Gazette18 until July 3
2010 after it had already been revoked Section 23(2) of Ontariorsquos Legislation Act
200619 provides that a regulation is not effective against a person before the earliest of
when the person has actual notice of it the last instant on the day on which it is published
on the e-Laws website or the last instant of the day on which it is published in the print
version of The Ontario Gazette As a result though the technical requirements for
providing notice of O Reg 23310 were met I have concerns whether adequate notice
was given to the public especially in light of the fact that the regulation was not
published in The Ontario Gazette until it had already been revoked
The regulation set out the area where the security fence was to be erected and designated
that area as a ldquopublic workrdquo which then called into play all the powers provided by the
PWPA
ONTARIO REGULATION 23310
made under the
PUBLIC WORKS PROTECTION ACT
Made June 2 2010Filed June 14 2010
Published on e-Laws June 16 2010Printed in The Ontario Gazette July 3 2010
DESIGNATION OF PUBLIC WORKS
Designation 1 The following are designated as public works for the purposes of the Act 1 Everything described in clause (a) of the definition of ldquopublic workrdquo in section
1 of the Act that is located in the area described in Schedule 1 including without limitation and for greater certainty every sidewalk in that area
2 The places described in paragraphs 1 2 and 3 of Schedule 2
18 The Ontario Gazette contains Ontariorsquos legal notices and regulations19 SO 2006 c 21 Sched F
14
Revocation 2 This Regulation is revoked on June 28 2010
Commencement 3 This Regulation comes into force on the later of June 21 2010 and the day
it is filed SCHEDULE 1
AREA REFERRED TO IN PARAGRAPH 1 OF SECTION 1
The area in the City of Toronto lying within a line drawn as follows
Beginning at the curb at the southeast corner of Blue Jays Way and Front Street West then north to the centre of Front Street West then east along the centre of Front Street West to the east curb of Windsor Street then north along the east curb of Windsor Street to the centre of Wellington Street then east along the centre of Wellington Street to the centre of Bay Street then south along the centre of Bay Street to a point directly opposite the north wall of Union Station then west along the exterior of the north wall of Union Station to the centre of York Street then south along the centre of York Street continuing east of the abutments under the railway overpass and continuing south along the centre of York Street to the centre of Bremner Boulevard then west along the centre of Bremner Boulevard to the east curb of Lower Simcoe Street then south along the east curb of Lower Simcoe Street to the north curb of Lake Shore Boulevard West then west along the north curb of Lake Shore Boulevard West to the south end of the walkway that is located immediately west of the John Street Pumping Station and runs between Lake Shore Boulevard West and the bus parking lot of the Rogers Centre then north along the west edge of that walkway to the bus parking lot of the Rogers Centre then west along the south edge of the bus parking lot of the Rogers Centre to the west edge of the driveway running between the parking lot and Bremner Boulevard then north along the west edge of that driveway to the north curb of Bremner Boulevard then west along the north curb of Bremner Boulevard to the east curb of Navy Wharf Court then north along the east curb of Navy Wharf Court to the southwest point of the building known as 73 Navy Wharf Court then east along the exterior of the south wall of that building then north along the exterior of the east wall of that building to the curb of Blue Jays Way then north along the east curb of Blue Jays Way to the curb at the southeast corner of Blue Jays Way and Front Street West
SCHEDULE 2DESIGNATED PLACES REFERRED TO IN PARAGRAPH 2 OF SECTION 1
1 The area within the area described in Schedule 1 that is within five metres of a line drawn as follows Beginning at the south end of the walkway that is located immediately west of the John Street Pumping Station and runs between Lake Shore Boulevard West and the bus parking lot of the Rogers Centre then north along the west edge of that walkway to the bus parking lot of the Rogers Centre then west along the south edge of the bus parking lot of the Rogers Centre to the west edge of the driveway running between the parking lot and Bremner
15
Boulevard then north along the west edge of that driveway and ending at Bremner Boulevard
2 The area within the area described in Schedule 1 that is within five metres of a line drawn as follows
Beginning at the southwest point of the building known as 73 Navy Wharf Court then east along the exterior of the south wall of that building then north along the exterior of the east wall of that building and ending at the curb of Blue Jays Way
3 The below-grade driveway located between Union Station and Front Street West and running between Bay Street and York Street in the City of Toronto
F Information Given to Public Regarding Security Protocol
Attempts were made to inform the public about the security measures that would be in
place leading up to and throughout the G20 The City of Toronto in consultation with
the ISU produced an information article20 and flyers21 No mention is made in the article
or flyers of the PWPA or O Reg 23310 and the powers given to the police The City of
Toronto also prepared an advertisement which appeared in local newspapers22 The
original version of the advertisement made no reference to the fact that people would be
subject to a search when attempting to access the security perimeter although reference
was made to the requirement to show identification and to have a valid purpose for
entering the restricted area A later version of the advertisement included additional text
advising that anyone requesting access to the security perimeter may be subject to a
search However just as with the article and flyers no specific mention was made of the
PWPA or O Reg 23310
20 A million copies of the newsletter Our Toronto which contained an article entitled ldquoWhat to expect during the G20 ndash June 26 amp 27 2010rdquo were delivered to homes in the City of Toronto21 Approximately 10000 flyers were sent to homes and businesses within the affected area The flyercontained general information about security and the anticipated effects on traffic22 The advertisement appeared in the Toronto Star Toronto Sun and Metroland community papers
16
In the days leading up to and throughout the G20 Summit there was apparently a
misunderstanding on the part of the police regarding a purported ldquofive-metre rulerdquo This
confusion likely emanated from the ldquofive-metresrdquo referenced in Schedule 2 of O Reg
23310 However the purpose of Schedule 2 was to designate as ldquopublic work(s)rdquo three
specific private property locations on which the security fence was to be erected that were
not ldquopublic worksrdquo The remainder of the fence was on public sidewalks and streets
which are ldquopublic worksrdquo To ensure that the fence was located on a ldquopublic workrdquo the
drafters designated the area within five metres of the security fence in these three
locations as a ldquopublic workrdquo23 Unfortunately the wording of Schedule 2 was very
cumbersome and the relationship between the area defined in Schedule 1 and the five-
metre reference in Schedule 2 was difficult to understand
Because of this confusion unfortunately the message was conveyed that the regulation
provided for a five-metres zone outside the entire security fence and that therefore the
PWPA applied to this entire area24 The media reported during the G20 summit that the
police had ldquosweepingrdquo powers pursuant to the PWPA within five-metres outside of the
exterior security fence25 O Reg 23310 did not provide the police such authority
23 Attached as Appendix 10 is a copy of a map showing the three specific areas designated in Schedule 2 of O Reg 2331024 Jennifer Yang ldquoJust being near the G20 security zone can get you arrestedrdquo Toronto Star (25 June 2010) online thestarcom lthttpwwwthestarcomnewsgtatorontog20summitarticle828498--just-being-near-the-g20-security-zone-can-get-you-arrestedgt25 David Rider et al ldquoDalton McGuinty Bill Blair defend quiet boost in arrest powersrdquo Toronto Star (26 June 2010) online thestarcom lthttpwwwthestarcomnewsgtatorontog20summitarticle828974--dalton-mcguinty-bill-blair-defend-quiet-boost-in-arrest-powersgt
17
SECTION 3 COMMENTARY
A Public Policy Considerations
There are some overarching public policy considerations which affect the issues I have
been asked to address in the Terms of Reference
As stated earlier the legislation was the product of emergency World War II concerns
related to the possibility of enemy sabotage of important infrastructures The legislative
debates in September of 1939 were particularly concerned with the provincersquos
hydroelectric facilities However notwithstanding these apparently specific concerns
when drafted the definition of ldquopublic workrdquo is extraordinarily broad and from a policy
standpoint raises questions of overbreadth especially given the ability to designate
almost anything a public work In a mere definition section s 1 of the legislation allows
the Lieutenant Governor in Council to designate ldquoany other building place or workrdquo as a
ldquopublic workrdquo However taken to its logical conclusion an entire city or more could be
designated as a ldquopublic workrdquo The definition of ldquopublic workrdquo includes ldquoany provincial
and any municipal public buildingrdquo but ldquopublic buildingrdquo is not further defined thereby
creating an element of uncertainty as to the specific provincial and municipal buildings
captured by this definition While perhaps extreme measures in times of war require
flexibility in all other circumstances legislation of this nature requires limitations and a
more specialized approach
The expression ldquoprivate armyrdquo was used in the Ontario legislative debate in 1939
Theoretically at least private armies could be created through the use of the ldquoguardrdquo
appointing authority by the many individuals who are authorized to appoint guards
pursuant to the PWPA This authority was apparently in response to the Federal
18
Governmentrsquos refusal to assume through the Defence Department the responsibility of
guarding utilities and industries essential to the war effort While such a result might not
have been contemplated in a parliamentary democracy it is clearly unwise to leave such
a possibility open
Section 3 of the PWPA provides in part that a guard or a peace officer
(a) may require any person entering or attempting to enter any public work or any approach thereto to furnish his or her name and addresshellipand to state the purpose for which he or she desires to enter the public work in writing or otherwise
The primary problem I see with this section is the vagueness of the term ldquoapproach
theretordquo An approach could begin at a considerable distance from the public work
Section 6(b) also provides for the making of regulations ldquodefining the areas that
constitute approaches to public works either generally or with regard to a particular
public workrdquo
In addition s 3(b) of the PWPA provides that a guard or peace officer ldquomay search
without warrant any person entering or attempting to enter a public workrdquo This section
does not permit any person to abandon any attempt to enter a public work in order to
avoid being subjected to a warrantless search Such conduct is adopted by persons who
decide not to enter a secured courthouse in order to avoid a warrantless search
Section 4 provides that for the purposes of the PWPA the statement under oath made by
persons engaged in the operation of a public work ldquoas to the boundaries of the public
work is conclusive evidence thereofrdquo Section 4 should be considered with s 5(1) which
provides that ldquoevery person found upon a public work or any approach thereto without
lawful authority the proof whereof lies on him or her is guilty of an offencehellip(emphasis
19
added)rdquo The provision in s 4 that ldquothe statement under oathhellipis conclusive evidence
thereofrdquo appears to remove from a courtrsquos consideration what could be a legitimate
dispute as to the boundaries of a public work or the approach thereto Furthermore the
apparent reversal of the onus of proof regarding lawful authority to be found in a public
work or an approach found in s 5 is also troublesome from a policy and legal point of
view
Accordingly if utilized to the extreme many government officials could appoint many
private armies to restrict access to many (in fact any) public places where the mere
statement under oath by the private guard of the boundaries of the areas under restricted
access is conclusive proof thereof Such potential for abuse is beyond troubling to say
the least
B Review of other Public Reports
As is evident from the foregoing discussion many issues arise regarding the operation of
the PWPA in todayrsquos context These considerations and others also formed the basis of
concerns raised in public reports which I was asked to review
1 Reports of the Canadian Civil Liberties Association
The CCLA preliminary G20 report26 dealt with most of the police related events that
occurred in Toronto during the G20 conference during the weekend of June 26th and 27th
2010 I will only make reference to a few portions of the report that deal with the Terms
of Reference
26 Canadian Civil Liberties Association A Breach of the Peace ndash A Preliminary Report of Observations During the 2010 G20 Summit June 29 2010 online Canadian Civil Liberties Association lthttpcclaorgwordpresswp-contentuploads201006CCLA-Report-A-Breach-of-the-Peace-Preliminary-report-updated-July-8pdfgt
20
The report of the CCLA called for the repeal or significant amendment to the PWPA ldquoto
meet basic constitutional standardsrdquo27 The CCLA ldquosuggests that the broad police powers
granted under the Act are inconsistent with current Charter requirementsrdquo28
I agree with the observation of the CCLA that the provisions of the PWPA led to a ldquolack
of clarity as to the scope of the search and seizure powersrdquo29 which created many
difficulties and conflicts that probably could have been avoided I would also certainly
agree with a conclusory comment in this preliminary report that ldquoit is the duty of police
officers to act with fairness and equanimity toward all citizens in accordance with the law
of the country The presumption of innocence and the protection against arbitrary arrests
and detention are at the core of a commitment to justicerdquo30
The CCLA in partnership with the National Union of Public Employees organized
public hearings for two days in Toronto and one day in Montreal in November of 2010
which they referred to as a Citizens Inquiry The Citizens Inquiry heard from 63 members
of the public who had witnessed policing incidents or had been detained Several lawyers
and academics also participated in the hearing and offered commentary on the events of
the G20 from a legal or policing perspective including issues related to the PWPA A
report of the hearings titled ldquoG20 Toronto Breach of the Peace Public Hearingsrdquo was
released on February 28 2011 which also referred to the PWPA31
27 Ibid p 2228 Ibid p 929 Ibid p 1230 Ibid p 2131 Canadian Civil Liberties Association and the National Union of Public and General Employees G20 Toronto Breach of the Peace Public Hearings February 2011 online Canadian Civil Liberties Association lthttpcclaorgwordpresswp-contentuploads201102Breach-of-the-Peace-Final-Reportpdfgt
21
2 The Ontario Ombudsman Report
The Ontario Ombudsman commenced an investigation after receiving complaints relating
to a variety of issues concerning the G20 The Marin Report recognized that ldquotypically
international summits attract protests and protests can turn violent and even deadlyrdquo32
The report therefore does not quarrel with the requirement that a high level of security is
required for such events
The report in my view accurately describes the PWPA as ldquounique in Canada in terms of
the breadth of its reach and the powers it confershellipno other Canadian statute defining
lsquopublic worksrsquo contains provisions similar to those found in Ontariorsquos Actrdquo33
32 Ontario Ombudsman report Investigation into The Ministry of Community Safety and Correctional Servicesrsquo Conduct in Relation to Ontario Regulation 23310 under the Public Works Protection Act ldquoCaught in the Actrdquo by Andreacute Marin (Toronto Ombudsman of Ontario December 2010) online Ombudsman of Ontario lthttpwwwombudsmanoncamedia157555g20final1-enpdfgt (ldquoMarin Reportrdquo) at para 733 Ibid at para 97
22
SECTION 4 POWERS OF THE POLICE
Pursuant to the Terms of Reference I have been asked to consider for future purposes
whether the powers given to peace officers and guards under the PWPA are necessary to
protect public works secure intergovernmental conferences or for any other purposes
To answer that question it is necessary to assess whether the current common law and
statutory regime provide the police with sufficient powers to perform these vital services
A Common Law Powers and Powers Pursuant to Police Services Acts
The police have extensive common law powers that can be used in protecting and
securing intergovernmental conferences and in protecting public works It is necessary to
examine those powers in order to assess whether and what if any additional powers are
needed such as those provided by the PWPA
Of particular assistance in this regard is R v Knowlton34 where the Supreme Court of
Canada considered whether the powers possessed by peace officers at common law and
statute in securing an area for the protection of a foreign dignitary were lawful The
Supreme Court of Canada held that in order for the exercise of peace officer powers to be
lawful the powers must satisfy the two step test set out in R v Waterfield35 First the
power must be in furtherance of a lawful duty Traditional common law peace officer
duties include the preservation of the peace and the prevention of crime These common
law police duties amongst others are now statutorily enshrined in s 42(1) of Ontariorsquos
Police Services Act (and other provincial police services acts)36 The second part of the
test requires an evaluation of whether the conduct of the peace officer was ldquojustifiedrdquo To
34 [1974] SCR 443 [ldquoKnowltonrdquo]35 See for example R v Dedman [1985] 2 SCR 236 RSO 1990 c P15
23
do so one applies the standard of what is reasonably necessary in light of the totality of
the circumstances In evaluating whether the conduct of the peace officer was justified it
is important to consider ldquothe duty being performed the extent to which some interference
with individual liberty is necessary in the performance of that duty the importance of the
performance of the duty to the public good the nature of the liberty being interfered with
and the nature and extent of the interferencerdquo37
In Knowlton police in Edmonton cordoned off an area as part of the security
arrangements for the visit of Premier Kosygin of the USSR Premier Kosygin had been
assaulted in Ottawa a few days prior to his visit to Edmonton Knowlton entered the
secured area questioning the power of the peace officer to prevent his entry He was
arrested without a warrant and charged with obstructing a peace officer in the execution
of his duties Knowlton argued that the peace officer did not have the power to prevent
his entry and was not acting in the execution of his duty
The Supreme Court of Canada emphasized the heightened importance of security when
there are visiting foreign dignitaries38
It is notorious and of common knowledge that the official visit of the head of state or high rank dignitary of a foreign country friendly as either may be is an event that frequently engenders a real or apprehended threat to the preservation of peace and that calls therefore for the adoption of proper and reasonable security measures in and by the host countryhellipThe restriction of the right of free access of the public to public streetshellipwas one of the steps--not an unusual one--which police authorities considered and adopted as necessary for the attainment of the purpose aforesaid In my opinion such conduct of the police was clearly falling within the general scope of the duties imposed upon them
37 R v Mann [2004] 3 SCR 59 at 7938 Supra note 34 at 447-448
24
In addressing the first part of the Waterfield test the Court referenced provisions of the
Alberta Police Act and the Criminal Code and concluded that the conduct of the peace
officers fell within the general scope of the duties imposed upon them for example
preservation of the peace and prevention of crime39
According to the principles which for the preservation of peace and prevention of crime underlie the provisions of s 30 amongst others of the Criminal Code these official authorities were not only entitled but in duty bound as peace officers to prevent a renewal of a like criminal assault on the person of Premier Kosygin during his official visit in Canada In this respect they had a specific and binding obligation to take proper and reasonable steps The restriction of the right of free access of the public to public streets at the strategic point mentioned above was one of the steps--not an unusual one--which police authorities considered and adopted as necessary for the attainment of the purpose aforesaid In my opinion such conduct of the police was clearly falling within the general scope of the duties imposed upon them
In analyzing the second step of the Waterfield test the Court concluded that there was no
evidence indicating the police officers resorted to an unjustifiable use of the powers
associated with the duties imposed on them
The Court in Knowlton recognized broad police powers to cordon off areas as part of the
security arrangements involving internationally protected persons In addition the Court
found that the warrantless arrest in that case was not an unjustifiable or unreasonable use
of powers associated with the police duties to preserve the peace order public safety and
to enforce the law and prevent crime Finally the Court found that peace officers were
duty bound ldquoto prevent a renewal of a like criminal assault on the person of Premier
Kosygin during his official visit in Canadardquo40 Furthermore it stated the closing of public
39 Ibid 40 Ibid at 447
25
streets ldquowas one of the steps -- not an unusual one -- which police authorities considered
and adopted as necessaryrdquo41
The Knowlton decision clearly acknowledged that the police had the duty and authority to
establish and enforce a secured area to protect a foreign dignitary In order to carry out
these duties the police may do what is reasonably necessary in light of the totality of the
circumstances
Though Knowlton was decided prior to the enactment of the Canadian Charter of Rights
and Freedoms (the ldquoCharterrdquo) this does not in my view affect the clear statement by the
Supreme Court of Canada regarding the duty of the police under the common law and the
Alberta Police Act to provide this security While the facts of Knowlton were quite
compelling in relation to the obvious need to provide adequate security for Premier
Kosygin the decision is equally important authority regarding the general responsibilities
of the police at common law and statute in relation to the preservation of the peace
B Other Statutory Powers
1 Criminal Code
Some specific powers are provided to peace officers pursuant to the Criminal Code42
Section 31 gives peace officers the power to arrest an individual for breach of the peace
Peace officers can arrest those committing the breach of the peace or those who on
reasonable grounds heshe believe are about to join in or renew the breach of the peace
Peace officers also have powers at their disposal under ss 63-69 of the Criminal Code to
deal with the offences of unlawful assembly and riots
41 Ibid at 447-448 42 RSC 1985 c C-46
26
2 Trespass to Property Act
The Ontario Trespass to Property Act43 is a potential source of police power to arrest
without warrant those who are unlawfully on certain premises or who were recently
unlawfully on the premises and refuse to give their name and address44 This statute
deals with illegal entry into both private and public property by creating the offence of
trespass for those who without the express permission of the occupier enter on to
premises or engage in an activity on the premises when it is prohibited by the statute45
Though this statute is primarily used by private property owners to keep unwanted people
off of their property it has also been invoked by the Speaker of the House46 and by the
City of Toronto47 It must be noted however that using the Trespass to Property Act in
relation to removing individuals from ldquopublicrdquo places may raise Charter issues48
3 Foreign Missions and International Organizations Act
The RCMP as peace officers have the general duty to preserve the peace and prevent
crime and offences as set out in s 18 of the Royal Canadian Mounted Police Act49
Additional duties found in s 17 of the Royal Canadian Mounted Police Regulations
198850 include the protection of ldquointernationally protected personsrdquo as defined in s 2 of
the Criminal Code Internationally protected persons include heads of state and their
43 RSO 1990 c T2144 Ibid ss 9(1) 1045 Ibid s 2(1)46R v Behrens [2004] OJ No 5135 (CJ) The Court held that the issue of the trespass notices fell under the Speakerrsquos parliamentary privilege and were not reviewable even on the basis of a Charter argument47R v Semple [2004] OJ No 2137 (CJ)48 In R v Semple the defendants were charged under the Ontario Trespass to Property Act for entering the grounds of Toronto City Hall after being banned from doing so In the end the Court held that the defendantsrsquo peaceful entry onto the grounds was an expression as per s 2(b) of the Charter Torontorsquos notice under the Act infringed on this freedom and in these circumstances it could not be justified under s 1 of the Charter 49 RSC 1985 c R-1050 SOR88-361
27
family members The RCMPrsquos duty to protect internationally protected persons is also
found in s 6(1) of the Security Offences Act51
In addition Canada is a signatory of the United Nations Convention on the Prevention
and Punishment of Crimes against Internationally Protected Persons including
Diplomatic Agents52 This Convention provides that the Government of Canada must
protect visiting heads of state or government foreign ministers representatives or
officials of a state or any official or other agent of an international organization of an
intergovernmental character and the family members that accompany him or her The
RCMP has the responsibility to carry out these security measures
Pursuant to s 101(1) of the FMIOA ldquoThe Royal Canadian Mounted Police has the
primary responsibility to ensure the security for the proper functioning of any
intergovernmental conference in which two or more states participate that is attended by
persons granted privileges and immunities under this Act and to which an order made or
continued under this Act appliesrdquo
The powers to carry out this mandate are found in s 101(2) of the FMIOA ldquothe Royal
Canadian Mounted Police may take appropriate measures including controlling limiting
or prohibiting access to any area to the extent and in a manner that is reasonable in the
circumstancesrdquo It is noteworthy that the FMIOA has legislated the same powers
provided to the police under common law and statute
In order to trigger the RCMP powers described in s 101 the Governor in Council on the
51 RSC 1985 c S-752 UNGA Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons including Diplomatic Agents 20 February 1977 UN Doc I-15410
28
recommendation of the Minister of Foreign Affairs and pursuant to s 5 of the FMIOA
made the G8 Summit Privileges and Immunities Order 201053 on December 10 2009
This order was repealed and a subsequent order54 was made on January 13 2010 A
similar order55 for the G20 Summit was made on March 11 201056
Therefore during the G20 the RCMP had the specific statutory power to limit or
prohibit access to any area and to any extent as long as the measures were appropriate
and done in a manner that was reasonable in the circumstances ldquoThe RCMP may secure
the perimeter of the security zone on land with fencing and restrict access to this zone
through the use of checkpoints and other measuresrdquo57
Though not invoked during the G20 s 101(4) of the FMIOA provides that arrangements
can be entered into with a province concerning the responsibilities of members of the
RCMP and members of the provincial and municipal police forces with respect to
ensuring the security for the proper functioning of an intergovernmental conference No
information was provided to me as to why such an arrangement was not entered into for
the G20
These intergovernmental security provisions of the FMIOA were enacted just prior to the
G8 being held in Kananaskis Alberta in 2002 In light of violent protests at international
events and the 911 terrorist attacks in the United States the Federal Government
53 SOR2009-33654 SOR2010-1355 SOR2010-6256 Supra note 17 ldquoUpon such an Order being made the RCMP in co-operation and collaboration with other police forces becomes impressed with the primary responsibility of ensuring not only the protection of the IPPs but also ensuring lsquosecurity for the proper functioningrsquo of the intergovernmental conference To that end the FMIOA provides that the lsquoappropriate measures including controlling limiting or prohibiting access to any area to the extent and in a manner that is reasonable in the circumstancesrsquo may be takenrdquo57 Ibid
29
considered it timely ldquoto clarify in statute the present common law authority for police to
provide security and protection for high profile international eventsrdquo58 At such events it
was intended that ldquothe RCMP is the lead to make sure that security is providedrdquo59
Given that it was clearly the intention of the Federal Government to have the RCMP as
the lead police force at these international events consideration should be given to
expand the use of the FMIOA to cover all large scale international events such as the
Olympics the Pan American Games and international trade fairs as these events are
routinely attended by heads of state and senior government officials Most recently
Vancouver held the 2010 Olympic and Paralympic Winter Games60 Though federal and
municipal legislation were passed to assist in securing the Games expansion and
application of the FMIOA would have been a better approach The RCMP as the national
police force ought to be in charge pursuant to their authority under the FMIOA
4 Emergency Legislation
Through my consultations with the parties listed in Appendix 2 I heard that while we are
not in a time of war as in 1939 when the PWPA was enacted we live in an age of
international and local terrorism threats Our democratic society must be vigilant in
58 Canada House of Commons Debates 37th Parl 1st Sess No 93 (5 October 2001) at 100059 Canada House of Commons Standing Committee on Public Safety and National Security 40th Parl 3rd
Sess Evidence (25 October 2010)60 In anticipation of this event the Governor General in Council on the recommendation of the Minister of Transport pursuant to the Aeronautics Act (RSC 1985 c A-2) and the Canadian Air Transport Security Authority Act (SC 2002 c 9 s 2) passed the Vancouver 2010 Aviation Security Regulations (SOR2009-298) The purpose of the regulations was to enhance aviation security during the Games The Regulation provided for extra security and extra authorized means to conduct screenings In addition the Vancouver City Council passed the very lengthy By-law No 9962 known as the ldquoVancouver 2010 Olympic and Paralympic Winter Games By-Lawrdquo Specific security measures to be employed at a city live site (described thoroughly in a Schedule to the By-Law) that were enabled by this By-Law included The installation and monitoring of airport style and other security measures including magnetometers and X-ray machines the installation and monitoring of closed circuit television cameras the searching of any person who wished to enter on to a city live site and any bag luggage or other container carried by such person and the prohibiting of access to or removal from a city live site any person who refused to submit to a search
30
maintaining a proper level of security while recognizing that democratic values and
security issues can conflict where public order is at issue It is important to highlight that
provincial legislation exists dealing with both terrorism threats and emergency situations
I have been informed that federal and provincial counter-terrorism plans exist that
address preventing and responding to acts of terrorism
The Police Services Act regulations mandate police forces to establish procedures
consistent with federal and provincial counter-terrorism plans61 and to have policies with
respect to counter-terrorism62 In addition the Emergency Management and Civil
Protection Act allows for orders to be made in situations specifically designated an
ldquoemergencyrdquo63 by the Lieutenant Governor in Council or the Premier that regulate or
prohibit travel and movement to from or within any specified area64 Therefore the
PWPA is not needed to deal with these emergency situations as specific more recent
emergency legislation is in place for that very purpose
C Gaps in Canadian Police Powers
The Ministry of Community Safety and Correctional Services provided me with an
interesting article published in 2010 entitled ldquoThe Gap in Canadian Police Powers
61 Adequacy and Effectiveness of Police Services O Reg 399 s 2862 Ibid s 2963 Section 1 of the Emergency Management and Civil Protection Act defines an ldquoemergencyrdquo as ldquoemergencyrdquo means a situation or an impending situation that constitutes a danger of major proportions that could result in serious harm to persons or substantial damage to property and that is caused by the forces of nature a disease or other health risk an accident or an act whether intentional or otherwise (ldquosituation drsquourgencerdquo)64 RSO 1990 c E9 s 702(4)
31
Canada needs lsquoPublic Order Policingrsquo Legislationrdquo and co-authored by Wesley Pue and
Robert Diab65
This article was prompted by the debate over the cost nature and extent of security to be
employed at the Vancouver 2010 Winter Olympics The authors criticized the fact that
policing authorities in Canada ldquolack specific statutory authorization to take measures
commonly thought necessary to their missionrdquo66 These measures included security
fences in public areas designated protest areas restricted access to public space police
surveillance and searches without cause
The authors recognize that such powers may be necessary but note that ldquono legislature
has ever expressly conferred such powers on policing authorities outside the context of
international intergovernmental conferences Nor does the common law accord such
powers to state officials on its ownrdquo67 I respectfully disagree with this latter statement
It is my view the police have powers pursuant to the common law and statute as I have
discussed in the preceding section
The authors referred to R v Knowlton68 which I have previously discussed While the
authors give Knowlton a very narrow interpretation stating that ldquoits binding principle is a
good deal narrower than the words taken out of context might suggestrdquo69 I however am
of the view that the decision supports the proposition that police have a broad range of
65 Wesley Pue and Robert Diab ldquoThe Gap In Canadian Police Powers Canada Needs lsquoPublic Order Policingrsquo Legislationrdquo (2010) 28 Windsor Rev Legal Soc Issues 87 Wesley Pue is a professor of legal history at the University of British Columbia and Robert Diab is a PhD candidate at the UBC Faculty of Law66 Ibid p 8867 Ibid68 Supra note 3469 Supra note 65 p 92
32
responsibilities with deep historical roots in the common law and codified in statute a
position shared by the Federal Government when it introduced amendments to the
FMIOA The actions of the police in Knowlton were necessarily incidental to their
common law police duties and powers
The authors conclude that this ldquoauthority of police to create zones of exclusion either as
an incident of the general and ancient duties of constableshelliphas never been established in
the courtsrdquo70 I am of the view however that the role of the police in establishing
security zones relating to a crime a serious accident or other emergency is a routine and
well-accepted use of police powers pursuant to their common law and statutory duties I
am not suggesting that this common law authority permits the police to establish security
zones ldquofor the proper functioning of any intergovernmental conference in which two or
more states participaterdquo71 larger than necessary to fulfill their purpose The FMIOA as
amended in 2002 provides the RCMP with ldquoprimary responsibility to ensure the security
for the proper functioning of the intergovernmental conferencerdquo72 It is interesting
however that when the Federal Government was enacting this specific authority the
legislative debates indicated that the government was merely clarifying ldquoin statute the
present common law authority for police to provide security and protection for high
profile international eventsrdquo73
Security perimeters are routinely erected by police in the context of the commission of a
crime motor vehicle and other accidents as well as the Santa Claus parade and other
70 Ibid p 9671 Supra note 8 s 101(1)72 Ibid73 Supra note 58
33
parades It would in my view be quite impractical and unnecessary to legislate an
extensive code of police powers given their common law and statutory responsibilities to
generally maintain public order It is not advisable in my opinion to be prescriptive in
any way regarding what actions the police can take since they must assess what the
situation warrants while at the same time considering individual rights and freedoms
The details of any police response to an emergency must be tailored to the exigencies
related to the situation
The police clearly have common law and statutory authority to conduct warrantless
searches in specific situations (ldquoin exigent circumstancesrdquo)74 However when
warrantless searches must be carried out on a regular routine basis the police are acting
more like full time security guards and there should be specific statutory authority
provided to give such powers
I certainly accept the general proposition the authors assert that the mobility rights of
citizens should not be unreasonably or unfairly dealt with However one only need be
aware of the massive amount of construction taking place on the streets of Toronto as this
Report is being written to appreciate that it is not always reasonable to expect that ldquothe
rights of businesses homeowners and ordinary citizens to go about their routine
activities without interruptionrdquo75 will go unhindered While generally desirable it cannot
be legally guaranteed At the same time the authors do concede that ldquoimportant as they
74 Supra note 42 s 4871175 Supra note 65 p 89
34
are the rights of assembly movement and protest are not unqualified They can ndash and
should ndash be balanced against other important public needsrdquo76
In my view public policing at times requires innovation as it often benefits from
creative problem solving If police abuse their common law powers related to ldquopublic
order policingrdquo they are accountable to a multiplicity of authorities and the rule of law
most particularly the Charter The legal rights outlined in the Charter such as ldquothe
principles of fundamental justicerdquo77 security ldquoagainst unreasonable search and seizurerdquo78
and ldquothe right not to be arbitrarily detained or imprisonedrdquo79 are described very
generally However they were chosen deliberately as it was recognized that in each case
there is an inherent tension between imposing security measures and fundamental rights
and freedoms Determining which is paramount will be based on the facts of each case
76 Ibid p 9177 Canadian Charter of Rights and Freedoms s 7 Part I of the Constitution Act 1982 being Schedule B to the Canada Act 1982 (UK) 1982 c 1178 Ibid s 879 Ibid s 9
35
SECTION 5 LEGAL ANALYSIS OF THE PUBLIC WORKS PROTECTION ACT
A Legal Analysis of the Legislation
Many stakeholders have questioned the constitutional validity of the PWPA and O Reg
23310 The Ontario Ombudsman seriously questioned whether O Reg 23310 could
pass ldquoconstitutional musterrdquo80 The CCLA suggested that the broad police powers
granted under the PWPA were inconsistent with the Charter81
To the same effect were comments made by Premier Dalton McGuinty who described
the PWPA as ldquoan archaic law that was used to undermine Torontoniansrsquo civil rights
during the G20rdquo82 He elaborated83
The issue is whether itrsquos appropriate given our present-day values and given an old law which I am confident doesnrsquot strike the balance that you and I would want today in terms of public safety and individual freedom of expressionhellipWhen you start talking about civil rights individual freedoms yoursquore talking about those things that in fact define us as a free and democratic societyhellipItrsquos something that is real and meaningful and important to all of us
The Terms of Reference for this Review do not require that I conduct a constitutional
analysis of the PWPA I have however been asked to consider areas for reform and if
appropriate make specific recommendations for amendment or repeal This does require
that I therefore consider whether the legislation may be vulnerable to constitutional
challenge
Section 2(b) of the Charter guarantees everyone the fundamental freedom of expression
The definition of ldquoexpressionrdquo has been interpreted broadly ldquoActivity is expressive if it
80 Supra note 32 at para 23381 Supra note 26 p 982 Robert Benzie and Rob Ferguson ldquoMcGuinty shifts focus to fixing G20 lawrdquo Toronto Star (10 December 2010) online thestarcom lthttpwwwthestarcomnewscanadaarticle905436--mcguinty-shifts-focus-to-fixing-g20-lawgt 83 Ibid
36
attempts to convey meaningrdquo84 While freedom of expression is not absolute there is
very little that is not considered expression However expression that advocates violence
is not protected under s 2(b)85
The Supreme Court of Canada in Committee for the Commonwealth of Canada v
Canada held that s 2(b) ldquodoes not encompass the right to use any and all government
property for purposes of disseminating onersquos views on public matters but I have no doubt
that it does include the right to use for that purpose streets and parks which are dedicated
to the use of the public subject no doubt to reasonable regulation to ensure their
continued use for the purposes to which they are dedicatedrdquo86 It seems clear that
protesting in public streets is a form of expression protected by s 2(b) Protesting at an
intergovernmental conference is clearly expressive in nature
In challenges alleging that a statute contravenes s 2(b) of the Charter a court would
examine whether the purpose or effect of a law contravenes section 2(b)87 There is no
reason to suggest that the purpose of the PWPA was to infringe the freedom of
expression The purpose of the PWPA is to protect important public infrastructures A
court would then have to consider whether the effect of the PWPA may have resulted in
an infringement of freedom of expression
O Reg 23310 defined significant portions of downtown Toronto as a ldquopublic workrdquo
Section 3(c) of the PWPA allows peace officers to refuse entry into public works which
therefore limits the areas in which protesters could express themselves By creating the
84 Irwin Toy Ltd v Queacutebec (Attorney General) [1989] 1 SCR 927 at 96885 Ibid at 97086 [1991] 1 SCR 139 at 165-16687 Peter Hogg Constitutional Law of Canada loose-leaf (consulted on 7 January 2011) 5th ed (Toronto Thomson Reuters Canada Limited 2007) at 43-6
37
relatively large security perimeter designated by the regulation individuals may allege
they were not permitted to communicate directly with those they were protesting against
Furthermore individuals could not communicate in public places such as public streets
where the right to freedom of expression has previously been found to exist88
Commissioner Ted Hughes completed an interim report following a public hearing into
the complaints regarding events that took place with respect to the Asia Pacific Economic
Cooperation (APEC) Conference in Vancouver British Columbia in November 1997
Commissioner Hughes recommended that generous opportunity should be afforded to
peaceful protesters to be seen in their protest activities by guests at the event89
Section 7 of the Charter provides that ldquoEveryone has the right to life liberty and security
of the person and the right not to be deprived thereof except in accordance with the
principles of fundamental justicerdquo The PWPA raises issues regarding the liberty and
security of the person in providing for warrantless searches and stopping for
identification Furthermore vague laws offend two fundamental values of our legal
system90 Firstly individuals are not provided with sufficient guidance as to what
behaviour a law prohibits Secondly those in charge of enforcing the law are not
provided with clear guidance as to how to enforce it A vague law can lead to inconsistent
and arbitrary enforcement91
88 Supra note 86 89 Canada Commission for Public Complaints Against the RCMP APEC ndash Commission Interim Report (31 July 2001) at s 3111 (Commissioner Ted Hughes QC) online Commission for Public Complaints Against the RCMP lthttpwwwcpc-cppgccaprrrepphrapecapec-31-engaspxgt90 Supra note 87 at 47-60 91 ldquoA vague provision does not provide an adequate basis for legal debate that is for reaching a conclusion as to its meaning by reasoned analysis applying legal criteria It does not sufficiently delineate any area of risk and thus can provide neither fair notice to the citizen nor a limitation of enforcement discretion Such
38
As described by Professor Hogg92
The requirement that any limit on rights be prescribed by law reflects two values that are basic to constitutionalism or the rule of law First in order to preclude arbitrary and discriminatory action by government officials all official action in derogation of rights must be authorized by law Secondly citizens must have reasonable opportunity to know what is prohibited so that they can act accordingly Both these values are satisfied by a law that fulfils two requirements (1) the law must be adequately accessible to the public and (2) the law must be formulated with sufficient precision to enable people to regulate their conduct by it and to provide guidance to those who apply the law
As I stated earlier the phrase ldquoany approach theretordquo contained in s 3(a) of the PWPA is
potentially vague No criteria are provided to assist in determining when one is on ldquoany
approach theretordquo A phrase such as ldquoany approach theretordquo is subject to many potential
interpretations It is arguable that this language does not provide reasonable guidance for
individuals to obey the law and for the law to be consistently enforced
Section 8 of the Charter provides that ldquoEveryone has the right to be secure against
unreasonable search or seizurerdquo A warrantless search or seizure is only reasonable if the
search was authorized by law the law itself is reasonable and the manner in which the
search carried out was reasonable93 The fact that no reasonable or probable suspicions
are needed to carry out a search pursuant to s 3(b) of the PWPA raises some issues The
only prerequisite to such a search is that the person or vehicle being subjected to a search
is entering or attempting to enter a public work
a provision is not intelligible to use the terminology of previous decisions of this Court and therefore it fails to give sufficient indications that could fuel a legal debaterdquo (R v Nova Scotia Pharmaceutical Society [1992] 2 SCR 606 at 639-640) 92 Supra note 87 at 38-1293 R v Nolet [2010] SCJ No 24 at para 21
39
Whether the PWPArsquos s 3(b) authority to undertake warrantless searches is ldquoreasonablerdquo
depends on the reasonableness of the impact on the subject of the search ldquoThe
individuals reasonable expectation of privacy must of course be balanced against the
public interest in effective law enforcementrdquo94 It is harder to justify a warrantless search
where the reasonable expectation of privacy is higher For example interference with
bodily integrity will raise the standard of reasonableness Conversely in situations where
people expect to have a lower level of privacy the standard to prove reasonableness is
lower
One rightfully has some expectation of privacy when in public but it does not rise to the
level of privacy that one expects in onersquos home The expectation of privacy further
decreases when one attempts to enter a ldquopublic workrdquo especially in the context of a
secured barrier to an intergovernmental conference
Section 9 of the Charter provides that ldquoEveryone has the right not to be arbitrarily
detained or imprisonedrdquo95 Under s 3(a) of the PWPA a person entering or attempting to
enter or approach a public work must provide his or her name and address and state the
purpose for which he or she desires to enter the public work In order for a guard or
peace officer to carry out this duty the guard or peace officer may ldquostoprdquo the person from
further approaching or entering the public work and the person is not permitted under the
statute to decide not to enter By so doing it is arguable the guard or peace officer has
assumed control over the movement of the individual by a demand or direction The
94 R v Rao [1984] OJ No 3180 at para 79 (CA)95 ldquoDetention under s 9hellipof the Charter refers to a suspension of the individualrsquos liberty interest by a significant physical or psychological restraint Psychological detention is established either where the individual has a legal obligation to comply with the restrictive request or demand or a reasonable person would conclude by reason of the state conduct that he or she had no choice but to complyrdquo (R v Grant [2009] SCJ No 32 at para 44)
40
PWPA provides for a significant legal consequence if the demand or direction is not
followed since ldquoEvery person who neglects or refuses to comply with a request or
direction made under this Act by a guard or peace officer and every person found upon a
public work or any approach thereto without lawful authority the proof whereof lies on
him or her is guilty of an offence and on conviction is liable to a fine of not more than
$500 or to imprisonment for a term of not more than two months or to bothrdquo96
Pursuant to s 3(b) of the PWPA a guard or peace officer may search any person entering
or attempting to enter a public work These searches would necessitate the detention of a
person If a guard or peace officer performs such a search he or she has taken control
over the movement of the person by a demand or direction The same serious legal
consequence results from failing to obey this demand or direction as that which results
from failing to obey the demand or direction pursuant to s 3(a) of the PWPA As a
result ldquodetentionsrdquo could occur pursuant to both s 3(a) and s 3(b) of the PWPA
The question that would need to be addressed in any challenge to the PWPA is whether
the detentions permitted by the PWPA are arbitrary in nature The use of the term ldquoany
approach theretordquo is vague and imprecise A person could be deemed to be on ldquoany
approach theretordquo a great distance from the entrance of a public work and their detention
might very well be arbitrary In addition the fact that the guards and peace officers
determine the boundaries of the ldquoapproachesrdquo which cannot be contested seems
arbitrary as well as who they chose to search
96 It should be noted that not all communications with state authorities and police officers will amount to a detention The question is whether a person may reasonably believe that he or she is free to refuse to comply
41
Section 11(d) of the Charter provides that ldquoAny person charged with an offence has the
right to be presumed innocent until proven guilty according to law in a fair and public
hearing by an independent and impartial tribunalrdquo This requires that the Crown have the
burden of proving the guilt of an individual charged with an offence97 Provisions that
place the burden on the accused to disprove on the balance of probabilities an essential
element of an offence raises s 11(d) concerns because convictions would be possible
even if reasonable doubt existed98 The presumption of innocence is not only infringed
upon by a requirement that an accused disprove an essential element of an offence but
also any requirement on an accused to prove a fact on the balance of probabilities to
avoid conviction
Section 5(1) of the PWPA states that ldquoEvery person who neglects or refuses to comply
with a request or direction made under this Act by a guard or peace officer and every
person found upon a public work or any approach thereto without lawful authority the
proof whereof lies on him or her is guilty of an offence and on conviction is liable to a
fine of not more than $500 or to imprisonment for a term of not more than two months or
to bothrdquo For the offence of being found upon a public work or on any approach to a
public work without lawful authority the burden of proof has been ldquoshiftedrdquo from the
Crown to the accused to prove lawful authority
As the foregoing analysis reveals there are certainly many concerns that arise when one
places the PWPA under the lens of the Charter However the rights and freedoms
provided by the Charter are not absolute They are ldquosubject only to such reasonable
97 R v Oakes [1986] 1 SCR 10398 Ibid at 132
42
limits prescribed by law as can be demonstrably justified in a free and democratic
societyrdquo99
In assessing whether a law which infringes the Charter is saved by s 1 a court examines
both the object of the law and the measures taken to achieve that objective A lawrsquos
objective achieves the status of being sufficiently important to justify overriding a
Charter right only when it is consistent with the values of a free and democratic society
The objective must relate to pressing and substantial concerns and not concerns that are
trivial and must be focussed on ldquothe realization of collective goals of fundamental
importancerdquo100 The measures adopted must be ldquorationally connectedrdquo to the objective of
the law101 The measures ldquoshould impair lsquoas little as possiblersquo the right or freedom in
questionrdquo102 Furthermore there must be ldquoa proportionality between the effects of the
measures which are responsible for limiting the Charter right or freedom and the
objective which has been identified as of lsquosufficient importancersquordquo103
An issue that may affect whether the potential limitation on rights and freedoms of the
PWPA and O Reg 23310 were ldquoprescribed by lawrdquo is whether the regulation was
adequately accessible to the public The Ontario Ombudsman the CCLA and the Ontario
Bar Association (ldquoOBArdquo) all noted a lack of notice regarding O Reg 23310 and its
effects prior to and during the G20 While the text of the regulation was available prior
99 Charter s 1 The Superior Court of Quebec decision of Tremblay v Queacutebec (Attorney General) [2001] JQ No 1504 (CS) involved an interim injunction brought by an applicant who was denied entry into the secured perimeter during the 2001 Summit of the Americas in Queacutebec City The applicant sought an injunction to either eliminate the security barrier or to be given a pass to let him within the secured perimeter Even though the Court held that the erection of the security zone violated the applicantrsquos right to freedom of expression and peaceful assembly The court held that the infringement was ldquodemonstrably justified in a free and democratic societyrdquo100 Supra note 97 at 136101 Ibid at 139102 Ibid103 Ibid
43
to the G20 it was only available on a website not frequently accessed by the public
Since O Reg 23310 was not published in The Ontario Gazette until after it was
revoked it may be that the regulation was not adequately accessible to the public
Reverse onus offences have been found to be ldquorationally connectedrdquo when there is plainly
a rational connection between the proven fact and the fact to be presumed Reverse
onuses have also been upheld when the burden placed on the Crown would be virtually
impossible to meet (such as proving sanity)104 Even if the accused only has the burden
of disproving the fact that heshe did not have lawful authority to be in a public work or
on an approach thereto there may not be a rational connection between the proven fact
and the fact to be presumed
The history of threats and violence at previous intergovernmental conferences
demonstrated that the protection of G20 participants was a pressing and substantial
concern However given the broadness of the PWPA every exercise of it raises the
potential for Charter scrutiny
Recommendation
Given the public policy considerations I have raised regarding the PWPA and Charter
concerns that could arise I recommend that the PWPA be repealed after the Province has
considered potential policy and security gaps as a result of its repeal
B Other uses of the Public Works Protection Act
It appears from my consultations with stakeholder groups that if the PWPA is repealed
104 R v Chaulk [1990] 3 SCR 1303 at 1340
44
there are two areas which may require legislation to provide specific peace officer
powers These two areas are court security and the protection of nuclear power facilities
and other power generating infrastructures
1 Court Security
During my decade as Ontariorsquos Attorney General (1975 to 1985) there were three
murders in provincial courthouses as well as many threats to members of courthouse staff
and others As violent acts in courthouses can be anticipated courtroom security is often
required
Individuals are compelled to go to court for a variety of reasons such as appearing as an
accused as a witness or for jury duty To provide protection to those who work there or
are compelled to attend an adequate level of court security may require a search without
warrant of each and every individual who seeks to enter a courthouse It is not reasonable
to require prior judicial authorization for each search that takes place
The courts have considered the constitutionality of these provisions of the PWPA in
conjunction with section 137 of the Ontario Police Services Act in the context of court
security
Section 137 of the Ontario Police Services Act imposes a responsibility on municipal
police services boards to secure the premises where court proceedings are conducted and
includes
1 Ensuring the security of judges and of persons taking part in or attending proceedings
45
2 During the hours when judges and members of the public are normally present ensuring the security of the premises
3 Ensuring the secure custody of persons in custody who are on or about the premises including persons taken into custody at proceedings
4 Determining appropriate levels of security for the purposes of paragraphs 1 2 and 3
In R v Campanella105 Ms Campanella was attending the John Sopinka Courthouse in
Hamilton At the courthouse there were signs posted stating that those who entered
would be searched for weapons When Ms Campanellarsquos bag was searched marijuana
was found and she was charged with the possession of marijuana She argued that her s
8 Charter protection against unreasonable search and seizure had been violated and the
marijuana discovered during the search should therefore be excluded as evidence The
trial judge and the summary convictions appeal court rejected the section 8 Charter
argument and the appellant appealed to the Ontario Court of Appeal
The Ontario Court of Appeal agreed that ldquogiven the importance of the government
objective and the context in which these searches take place it is reasonable to authorize
warrantless searches of those entering courthouse facilitiesrdquo106 The Court stated ldquothe
only effective way to diminish the risk in a large courthouse is to subject everyone
without prior security clearance to some kind of inspection I can see no other feasible
means of achieving the aimrdquo107
The Court also pointed out the concern relating to the erosion of the benefits and
105 [2002] OJ No 5104 (SCJ) affrsquod [2005] OJ No 1345 (CA) [ldquoCampanellardquo]106 R v Campanella [2005] OJ No 1345 at para 17 (CA)107 Ibid at para 19
46
protections conferred by s 8 of the Charter108
I am sensitive to the concern that we should not erode the benefits and protections of s 8 by gradually sanctioning ever-greater intrusions into privacy because of unfounded fears We should not lightly accept that searches in public places are justified solely because people have become used to them and expect them However the record in this case establishes the justification for the kinds of searches carried out in this case
Ultimately the appeal was dismissed and s 137 of the Police Services Act and s 3(b) of
the PWPA) were held to comply with s 8 of the Charter109
In its consultations with me the OBA similarly stated that the existing nature of court
security is necessary and is generally ldquowell toleratedrdquo At the same time however it
submits that the security regime should not be ldquoshoehornedrdquo into the PWPA regime and
that it would be preferable to provide a legislative framework tailored for the specific
security requirements While the PWPA has been relied upon as support for the exercise
of powers by the police in providing court security the OBA submits that the PWPArsquos
ldquosingle security schemerdquo which declares something a ldquopublic workrdquo is an ldquoawkward
blunt instrument in a world where more specialized tools are necessaryrdquo When
warrantless searches are being done on a routine basis it is advisable to have specific
legislation providing peace officers with such power
Recommendation
Court security legislation is currently in place in many jurisdictions across Canada and
contain provisions that permit warrantless searches of persons wanting to access a
108 Ibid at para 25109 The Court in R v SS [2005] OJ No 5002 (SCJ) agreed with the findings and rationale of the Court of Appeal in Campanella
47
courthouse The constitutional validity of such legislation in Manitoba was upheld by that
provincersquos highest court110
Given the ongoing need for warrantless searches at courthouses the Province of Ontario
should consider specific court security legislation in Ontario to support the security
measures in our courthouses if the PWPA is to be repealed taking into consideration the
responsibilities of the municipal police services boards provided in s 137 of the Police
Services Act This legislation should only be passed after proper notice consultation and
legislative debate
2 Power Generating Infrastructures
It is clear from the submissions that I received from representatives of OPG and the
Canadian Nuclear Safety Commission (ldquoCNSCrdquo) that the PWPA currently plays a role in
providing security officers with the powers to secure power generating infrastructures
including the ability to carry firearms and the ability to stop and require identification
from those in proximity to those nuclear plants
Security is of the utmost importance in protecting a nuclear power plant Members of the
public do not need to access a nuclear or similar power facility unless employed at the
facility or carrying out work for the facility111
The security of areas within nuclear power plants is governed by the Nuclear Security
110 R v Lindsay [2004] MJ No 380 (CA) 111 Though the discussion focuses on nuclear power plants I have been informed that other power generating infrastructures use the PWPA to designate their security officers as guards As a result if the PWPA is repealed it will be necessary to broaden the consultations in relation to these other power generating infrastructures
48
Regulations112 Every nuclear power plant must be located within a ldquoprotected areardquo113
This protected area is the area within a fenced perimeter which is alarmed and
continually patrolled This area must be equipped with devices that employ two
independent systems to detect intrusion into the area114 The Nuclear Security
Regulations also provide detailed specifications for the barrier which must enclose the
protected area115 In addition licensees must ldquoidentify all vital areas and implement
physical protection measures ndash including access control and measures designed to delay
unauthorized accessrdquo116
The Nuclear Security Regulations also provide detailed provisions regarding entry into
protected areas No person can ldquoenter a protected area without physical proof of the
recorded authorization of the licenseerdquo117 Further to this on entry into a protected area
ldquothat personrsquos identity shall be verified by two separate personnel identity verification
systems one of which is an access card reader and the other of which is a biometric
personnel identity verification devicerdquo118 Licensees must also ldquoensure that vehicle
portals are used for the entry and exit of land vehicles into and from a protected areardquo119
Physical protection measures are also required to reduce the chance of a forced land
vehicle entry into a protected area120
The power to conduct searches upon entry to a protected area is also provided by the
112 SOR2000-209 113 Ibid s 8114 Ibid s 11(a)(i)115 Ibid s 9116 Ibid s 141117 Ibid s 17(1)118 Ibid s 171119 Ibid s 91(1)120 Ibid s 91(4)
49
Nuclear Security Regulations Signs must be posted that are visible to people about to
enter the protected area stating that they must allow a nuclear security officer (ldquoNSOrdquo) to
ldquosearch them and everything in their possession including any land vehicle for weapons
and explosive substancesrdquo121 In addition when leaving the protected area people must
allow NSOs to ldquosearch them and everything in their possession including any land
vehicle for Category I II or III nuclear materialrdquo122 People are not permitted to enter or
leave a protected area unless these searches are carried out123 The Nuclear Security
Regulations provide for the method of search including ldquoa hand-held scanner a walk-
through scanner or any similar devicerdquo124 In addition if an NSO determines it
necessary a frisk search can be carried out by a person of the same sex125
I have been informed that the area outside of but adjacent to the ldquoprotected areardquo is
referred to as the ldquocontrolled areardquo This area includes roadways and waterways within
the nuclear facilityrsquos property boundaries adjacent to or in close proximity to the nuclear
power plantrsquos protected area and may be generally accessible to the public
As a result of the September 11 2001 terrorist attacks the Nuclear Security Regulations
were amended to require that high security nuclear facilities maintain an on-site armed
Nuclear Response Force (ldquoNRFrdquo)126 The NRF is composed of specialized NSOs
Section 32 of the Nuclear Security Regulations requires the NRF to be capable of making
an effective intervention taking into account the threat
121 Ibid s 27(1)(a)122 Ibid s 27(1)(b)123 Ibid s 27(2)124 Ibid s 27(5)(a)125 Ibid s 27(5)(b)126 Ibid s 32
50
Members of the NRF are mandated by the Nuclear Security Regulations to be ldquotrained in
the use of firearms authorized to carry firearms in Canada and qualified to use themrdquo127
However to satisfy this requirement the NRF resorts to the PWPA since the federal
regulations do not authorize the NRF to carry firearms without a licence However
under s 2(1) of the PWPA NSOs are designated as ldquoguardsrdquo with the powers of a peace
officer most significantly to carry and use firearms without having to be licensed128
Such a designation also enables the OPG to acquire and dispose of firearms
In the consultations I had with the OPG and the CNSC they advised me that NSOs
receive training equivalent to Canadian police standards and that NRF officers receive
training equivalent to federal and provincial police tactical team requirements
Another aspect of the PWPA used to secure nuclear power plants relates to powers
exercised by NSOs in ldquocontrolled areasrdquo The federal regulations do not provide the
NSOs with any power to demand identification within this area However pursuant to
the PWPA as appointed ldquoguardsrdquo the NSOs have the power to demand identity
verification in the controlled area They also have the authority to arrest anyone who
obstructs NSOs in the performance of their duties under the PWPA
In addition to using the PWPA to secure the controlled areas I have been advised by the
OPG that NSOs use powers pursuant to the PWPA to secure areas within 100 metres of a
nuclear facilityrsquos property line immediately adjacent to the controlled area These powers
are exercised under the broad language of the PWPA regarding ldquoapproaches to public
127 Ibid s 1 (on-site nuclear response force definition)128 Section 11707 of the Criminal Code exempts peace officers from licensing requirements for possessing firearms and other prohibited and restricted weapons
51
worksrdquo This is an illustration of the problem with the vagueness of this language in the
legislation As these powers are exercised on public land they could be challenged as a
potential infringement on individual rights and freedoms However I have been advised
that there have been no such incidents to date The need to ensure the security of these
facilities must be taken into the balance
NSOs must be able to monitor and control access to the controlled areas and areas close
to a nuclear power plantrsquos property line This provides for a more secure perimeter
around these facilities They need authority to challenge individuals acting in a suspicious
manner or conducting surveillance of nuclear facilities The OPG has informed me that
areas outside a nuclear facilityrsquos property line immediately adjacent to the controlled
area are still close enough to take advantage of the short distance to conduct intelligence
using high-powered surveillance equipment These nuclear power plants are not located
on isolated islands and are therefore vulnerable Both the Pickering Nuclear Generating
Station and the Darlington Nuclear Generating Station operate within major urban areas
being 30 km and 60 km east of downtown Toronto respectively I am advised that
previous events such as ldquoThe Toronto 18rdquo129 have shown that those intent on targeting
vital infrastructure such as power generating facilities often use reconnaissance and
intelligence gathering as precursor tactics
Recommendation
If the PWPA is to be repealed it is imperative that those who secure our nuclear and
power generating facilities be given the requisite specific legislative powers to do so
129 See for example ldquoLast 2 Toronto 18 accused found guiltyrdquo CBC News (23 June 2010) online cbcca lthttpwwwcbccanewscanadatorontostory20100623toronto-18-verdicthtmlgt
52
The source for these powers should be set out in the federal Nuclear Security
Regulations However if this is not a desired option the Government of Ontario must
consider specific legislation setting out the specific powers required to properly secure
these facilities and the specific location in which these powers can be exercised Such
legislation should not be passed without proper notice consultation and legislative
debate
53
SECTION 6 CONCLUSION
The PWPA was enacted in 1939 to support the war effort At the time the protection of
Ontariorsquos hydroelectric facilities from sabotage was of particular concern Since then the
PWPA has been used to provide the legal foundation for the powers exercised by the
police in providing court security and even more recently by the OPG in securing
nuclear power facilities In June 2010 the PWPA was used to provide powers to secure
intergovernmental conferences The vagueness of the PWPA permits it to be used in
situations when it is arguably not necessary and potentially abusive In my view the
PWPA has been used for purposes beyond its original intent
The time for the PWPA seems to have passed If the Government of Ontario enacts as I
have suggested specific legislation to provide for courthouse security and power
generating infrastructure security it would appear that there is no longer a need for the
PWPA I am also mindful of the existence of counter-terrorism and emergencies
legislation to deal with these situations as they arise
ldquoIn determining the boundaries of police powers caution is required to ensure the proper
balance between preventing excessive intrusions on an individualrsquos liberty and privacy
and enabling the police to do what is reasonably necessary to perform their duties in
protecting the publicrdquo130 The overly broad and vague language of the PWPA does not
strike this required balance with individual rights and freedoms
The late Justice Jackson of the United States Supreme Court stated that every
emergency power once conferred ldquolies about like a loaded weapon ready for the hand of
130 R v Clayton [2007] 2 SCR 725 at 742
54
any authority that can bring forward a plausible claim of an urgent needrdquo131 The need to
protect the public must be balanced with the requirement to preserve fundamental rights
and freedoms
Yet at the same time ldquoCanadians are entitled to demand the best public order policing
possible from their governmentrdquo132 There is no question that we live in a different world
post 911 We live in difficult times with constant threats both domestically and from
abroad The police clearly need to be given adequate powers to carry out their duties
The police use their expertise on a daily basis to assess the powers they require In
instances when they take action that exceeds their powers their actions are examined by
various mandated bodies This process I believe results in the proper balance between
police powers and individual rights and freedoms Therefore any legislation that purports
to grant special police powers must be specific and direct and developed in consultation
with stakeholders and tested through thorough debate in our transparent democratic
system
131 Korematsu v United States 323 US 214 (1944)132 Supra note 26 p 8
55
Revocation 2 This Regulation is revoked on June 28 2010
Commencement 3 This Regulation comes into force on the later of June 21 2010 and the day
it is filed SCHEDULE 1
AREA REFERRED TO IN PARAGRAPH 1 OF SECTION 1
The area in the City of Toronto lying within a line drawn as follows
Beginning at the curb at the southeast corner of Blue Jays Way and Front Street West then north to the centre of Front Street West then east along the centre of Front Street West to the east curb of Windsor Street then north along the east curb of Windsor Street to the centre of Wellington Street then east along the centre of Wellington Street to the centre of Bay Street then south along the centre of Bay Street to a point directly opposite the north wall of Union Station then west along the exterior of the north wall of Union Station to the centre of York Street then south along the centre of York Street continuing east of the abutments under the railway overpass and continuing south along the centre of York Street to the centre of Bremner Boulevard then west along the centre of Bremner Boulevard to the east curb of Lower Simcoe Street then south along the east curb of Lower Simcoe Street to the north curb of Lake Shore Boulevard West then west along the north curb of Lake Shore Boulevard West to the south end of the walkway that is located immediately west of the John Street Pumping Station and runs between Lake Shore Boulevard West and the bus parking lot of the Rogers Centre then north along the west edge of that walkway to the bus parking lot of the Rogers Centre then west along the south edge of the bus parking lot of the Rogers Centre to the west edge of the driveway running between the parking lot and Bremner Boulevard then north along the west edge of that driveway to the north curb of Bremner Boulevard then west along the north curb of Bremner Boulevard to the east curb of Navy Wharf Court then north along the east curb of Navy Wharf Court to the southwest point of the building known as 73 Navy Wharf Court then east along the exterior of the south wall of that building then north along the exterior of the east wall of that building to the curb of Blue Jays Way then north along the east curb of Blue Jays Way to the curb at the southeast corner of Blue Jays Way and Front Street West
SCHEDULE 2DESIGNATED PLACES REFERRED TO IN PARAGRAPH 2 OF SECTION 1
1 The area within the area described in Schedule 1 that is within five metres of a line drawn as follows Beginning at the south end of the walkway that is located immediately west of the John Street Pumping Station and runs between Lake Shore Boulevard West and the bus parking lot of the Rogers Centre then north along the west edge of that walkway to the bus parking lot of the Rogers Centre then west along the south edge of the bus parking lot of the Rogers Centre to the west edge of the driveway running between the parking lot and Bremner
15
Boulevard then north along the west edge of that driveway and ending at Bremner Boulevard
2 The area within the area described in Schedule 1 that is within five metres of a line drawn as follows
Beginning at the southwest point of the building known as 73 Navy Wharf Court then east along the exterior of the south wall of that building then north along the exterior of the east wall of that building and ending at the curb of Blue Jays Way
3 The below-grade driveway located between Union Station and Front Street West and running between Bay Street and York Street in the City of Toronto
F Information Given to Public Regarding Security Protocol
Attempts were made to inform the public about the security measures that would be in
place leading up to and throughout the G20 The City of Toronto in consultation with
the ISU produced an information article20 and flyers21 No mention is made in the article
or flyers of the PWPA or O Reg 23310 and the powers given to the police The City of
Toronto also prepared an advertisement which appeared in local newspapers22 The
original version of the advertisement made no reference to the fact that people would be
subject to a search when attempting to access the security perimeter although reference
was made to the requirement to show identification and to have a valid purpose for
entering the restricted area A later version of the advertisement included additional text
advising that anyone requesting access to the security perimeter may be subject to a
search However just as with the article and flyers no specific mention was made of the
PWPA or O Reg 23310
20 A million copies of the newsletter Our Toronto which contained an article entitled ldquoWhat to expect during the G20 ndash June 26 amp 27 2010rdquo were delivered to homes in the City of Toronto21 Approximately 10000 flyers were sent to homes and businesses within the affected area The flyercontained general information about security and the anticipated effects on traffic22 The advertisement appeared in the Toronto Star Toronto Sun and Metroland community papers
16
In the days leading up to and throughout the G20 Summit there was apparently a
misunderstanding on the part of the police regarding a purported ldquofive-metre rulerdquo This
confusion likely emanated from the ldquofive-metresrdquo referenced in Schedule 2 of O Reg
23310 However the purpose of Schedule 2 was to designate as ldquopublic work(s)rdquo three
specific private property locations on which the security fence was to be erected that were
not ldquopublic worksrdquo The remainder of the fence was on public sidewalks and streets
which are ldquopublic worksrdquo To ensure that the fence was located on a ldquopublic workrdquo the
drafters designated the area within five metres of the security fence in these three
locations as a ldquopublic workrdquo23 Unfortunately the wording of Schedule 2 was very
cumbersome and the relationship between the area defined in Schedule 1 and the five-
metre reference in Schedule 2 was difficult to understand
Because of this confusion unfortunately the message was conveyed that the regulation
provided for a five-metres zone outside the entire security fence and that therefore the
PWPA applied to this entire area24 The media reported during the G20 summit that the
police had ldquosweepingrdquo powers pursuant to the PWPA within five-metres outside of the
exterior security fence25 O Reg 23310 did not provide the police such authority
23 Attached as Appendix 10 is a copy of a map showing the three specific areas designated in Schedule 2 of O Reg 2331024 Jennifer Yang ldquoJust being near the G20 security zone can get you arrestedrdquo Toronto Star (25 June 2010) online thestarcom lthttpwwwthestarcomnewsgtatorontog20summitarticle828498--just-being-near-the-g20-security-zone-can-get-you-arrestedgt25 David Rider et al ldquoDalton McGuinty Bill Blair defend quiet boost in arrest powersrdquo Toronto Star (26 June 2010) online thestarcom lthttpwwwthestarcomnewsgtatorontog20summitarticle828974--dalton-mcguinty-bill-blair-defend-quiet-boost-in-arrest-powersgt
17
SECTION 3 COMMENTARY
A Public Policy Considerations
There are some overarching public policy considerations which affect the issues I have
been asked to address in the Terms of Reference
As stated earlier the legislation was the product of emergency World War II concerns
related to the possibility of enemy sabotage of important infrastructures The legislative
debates in September of 1939 were particularly concerned with the provincersquos
hydroelectric facilities However notwithstanding these apparently specific concerns
when drafted the definition of ldquopublic workrdquo is extraordinarily broad and from a policy
standpoint raises questions of overbreadth especially given the ability to designate
almost anything a public work In a mere definition section s 1 of the legislation allows
the Lieutenant Governor in Council to designate ldquoany other building place or workrdquo as a
ldquopublic workrdquo However taken to its logical conclusion an entire city or more could be
designated as a ldquopublic workrdquo The definition of ldquopublic workrdquo includes ldquoany provincial
and any municipal public buildingrdquo but ldquopublic buildingrdquo is not further defined thereby
creating an element of uncertainty as to the specific provincial and municipal buildings
captured by this definition While perhaps extreme measures in times of war require
flexibility in all other circumstances legislation of this nature requires limitations and a
more specialized approach
The expression ldquoprivate armyrdquo was used in the Ontario legislative debate in 1939
Theoretically at least private armies could be created through the use of the ldquoguardrdquo
appointing authority by the many individuals who are authorized to appoint guards
pursuant to the PWPA This authority was apparently in response to the Federal
18
Governmentrsquos refusal to assume through the Defence Department the responsibility of
guarding utilities and industries essential to the war effort While such a result might not
have been contemplated in a parliamentary democracy it is clearly unwise to leave such
a possibility open
Section 3 of the PWPA provides in part that a guard or a peace officer
(a) may require any person entering or attempting to enter any public work or any approach thereto to furnish his or her name and addresshellipand to state the purpose for which he or she desires to enter the public work in writing or otherwise
The primary problem I see with this section is the vagueness of the term ldquoapproach
theretordquo An approach could begin at a considerable distance from the public work
Section 6(b) also provides for the making of regulations ldquodefining the areas that
constitute approaches to public works either generally or with regard to a particular
public workrdquo
In addition s 3(b) of the PWPA provides that a guard or peace officer ldquomay search
without warrant any person entering or attempting to enter a public workrdquo This section
does not permit any person to abandon any attempt to enter a public work in order to
avoid being subjected to a warrantless search Such conduct is adopted by persons who
decide not to enter a secured courthouse in order to avoid a warrantless search
Section 4 provides that for the purposes of the PWPA the statement under oath made by
persons engaged in the operation of a public work ldquoas to the boundaries of the public
work is conclusive evidence thereofrdquo Section 4 should be considered with s 5(1) which
provides that ldquoevery person found upon a public work or any approach thereto without
lawful authority the proof whereof lies on him or her is guilty of an offencehellip(emphasis
19
added)rdquo The provision in s 4 that ldquothe statement under oathhellipis conclusive evidence
thereofrdquo appears to remove from a courtrsquos consideration what could be a legitimate
dispute as to the boundaries of a public work or the approach thereto Furthermore the
apparent reversal of the onus of proof regarding lawful authority to be found in a public
work or an approach found in s 5 is also troublesome from a policy and legal point of
view
Accordingly if utilized to the extreme many government officials could appoint many
private armies to restrict access to many (in fact any) public places where the mere
statement under oath by the private guard of the boundaries of the areas under restricted
access is conclusive proof thereof Such potential for abuse is beyond troubling to say
the least
B Review of other Public Reports
As is evident from the foregoing discussion many issues arise regarding the operation of
the PWPA in todayrsquos context These considerations and others also formed the basis of
concerns raised in public reports which I was asked to review
1 Reports of the Canadian Civil Liberties Association
The CCLA preliminary G20 report26 dealt with most of the police related events that
occurred in Toronto during the G20 conference during the weekend of June 26th and 27th
2010 I will only make reference to a few portions of the report that deal with the Terms
of Reference
26 Canadian Civil Liberties Association A Breach of the Peace ndash A Preliminary Report of Observations During the 2010 G20 Summit June 29 2010 online Canadian Civil Liberties Association lthttpcclaorgwordpresswp-contentuploads201006CCLA-Report-A-Breach-of-the-Peace-Preliminary-report-updated-July-8pdfgt
20
The report of the CCLA called for the repeal or significant amendment to the PWPA ldquoto
meet basic constitutional standardsrdquo27 The CCLA ldquosuggests that the broad police powers
granted under the Act are inconsistent with current Charter requirementsrdquo28
I agree with the observation of the CCLA that the provisions of the PWPA led to a ldquolack
of clarity as to the scope of the search and seizure powersrdquo29 which created many
difficulties and conflicts that probably could have been avoided I would also certainly
agree with a conclusory comment in this preliminary report that ldquoit is the duty of police
officers to act with fairness and equanimity toward all citizens in accordance with the law
of the country The presumption of innocence and the protection against arbitrary arrests
and detention are at the core of a commitment to justicerdquo30
The CCLA in partnership with the National Union of Public Employees organized
public hearings for two days in Toronto and one day in Montreal in November of 2010
which they referred to as a Citizens Inquiry The Citizens Inquiry heard from 63 members
of the public who had witnessed policing incidents or had been detained Several lawyers
and academics also participated in the hearing and offered commentary on the events of
the G20 from a legal or policing perspective including issues related to the PWPA A
report of the hearings titled ldquoG20 Toronto Breach of the Peace Public Hearingsrdquo was
released on February 28 2011 which also referred to the PWPA31
27 Ibid p 2228 Ibid p 929 Ibid p 1230 Ibid p 2131 Canadian Civil Liberties Association and the National Union of Public and General Employees G20 Toronto Breach of the Peace Public Hearings February 2011 online Canadian Civil Liberties Association lthttpcclaorgwordpresswp-contentuploads201102Breach-of-the-Peace-Final-Reportpdfgt
21
2 The Ontario Ombudsman Report
The Ontario Ombudsman commenced an investigation after receiving complaints relating
to a variety of issues concerning the G20 The Marin Report recognized that ldquotypically
international summits attract protests and protests can turn violent and even deadlyrdquo32
The report therefore does not quarrel with the requirement that a high level of security is
required for such events
The report in my view accurately describes the PWPA as ldquounique in Canada in terms of
the breadth of its reach and the powers it confershellipno other Canadian statute defining
lsquopublic worksrsquo contains provisions similar to those found in Ontariorsquos Actrdquo33
32 Ontario Ombudsman report Investigation into The Ministry of Community Safety and Correctional Servicesrsquo Conduct in Relation to Ontario Regulation 23310 under the Public Works Protection Act ldquoCaught in the Actrdquo by Andreacute Marin (Toronto Ombudsman of Ontario December 2010) online Ombudsman of Ontario lthttpwwwombudsmanoncamedia157555g20final1-enpdfgt (ldquoMarin Reportrdquo) at para 733 Ibid at para 97
22
SECTION 4 POWERS OF THE POLICE
Pursuant to the Terms of Reference I have been asked to consider for future purposes
whether the powers given to peace officers and guards under the PWPA are necessary to
protect public works secure intergovernmental conferences or for any other purposes
To answer that question it is necessary to assess whether the current common law and
statutory regime provide the police with sufficient powers to perform these vital services
A Common Law Powers and Powers Pursuant to Police Services Acts
The police have extensive common law powers that can be used in protecting and
securing intergovernmental conferences and in protecting public works It is necessary to
examine those powers in order to assess whether and what if any additional powers are
needed such as those provided by the PWPA
Of particular assistance in this regard is R v Knowlton34 where the Supreme Court of
Canada considered whether the powers possessed by peace officers at common law and
statute in securing an area for the protection of a foreign dignitary were lawful The
Supreme Court of Canada held that in order for the exercise of peace officer powers to be
lawful the powers must satisfy the two step test set out in R v Waterfield35 First the
power must be in furtherance of a lawful duty Traditional common law peace officer
duties include the preservation of the peace and the prevention of crime These common
law police duties amongst others are now statutorily enshrined in s 42(1) of Ontariorsquos
Police Services Act (and other provincial police services acts)36 The second part of the
test requires an evaluation of whether the conduct of the peace officer was ldquojustifiedrdquo To
34 [1974] SCR 443 [ldquoKnowltonrdquo]35 See for example R v Dedman [1985] 2 SCR 236 RSO 1990 c P15
23
do so one applies the standard of what is reasonably necessary in light of the totality of
the circumstances In evaluating whether the conduct of the peace officer was justified it
is important to consider ldquothe duty being performed the extent to which some interference
with individual liberty is necessary in the performance of that duty the importance of the
performance of the duty to the public good the nature of the liberty being interfered with
and the nature and extent of the interferencerdquo37
In Knowlton police in Edmonton cordoned off an area as part of the security
arrangements for the visit of Premier Kosygin of the USSR Premier Kosygin had been
assaulted in Ottawa a few days prior to his visit to Edmonton Knowlton entered the
secured area questioning the power of the peace officer to prevent his entry He was
arrested without a warrant and charged with obstructing a peace officer in the execution
of his duties Knowlton argued that the peace officer did not have the power to prevent
his entry and was not acting in the execution of his duty
The Supreme Court of Canada emphasized the heightened importance of security when
there are visiting foreign dignitaries38
It is notorious and of common knowledge that the official visit of the head of state or high rank dignitary of a foreign country friendly as either may be is an event that frequently engenders a real or apprehended threat to the preservation of peace and that calls therefore for the adoption of proper and reasonable security measures in and by the host countryhellipThe restriction of the right of free access of the public to public streetshellipwas one of the steps--not an unusual one--which police authorities considered and adopted as necessary for the attainment of the purpose aforesaid In my opinion such conduct of the police was clearly falling within the general scope of the duties imposed upon them
37 R v Mann [2004] 3 SCR 59 at 7938 Supra note 34 at 447-448
24
In addressing the first part of the Waterfield test the Court referenced provisions of the
Alberta Police Act and the Criminal Code and concluded that the conduct of the peace
officers fell within the general scope of the duties imposed upon them for example
preservation of the peace and prevention of crime39
According to the principles which for the preservation of peace and prevention of crime underlie the provisions of s 30 amongst others of the Criminal Code these official authorities were not only entitled but in duty bound as peace officers to prevent a renewal of a like criminal assault on the person of Premier Kosygin during his official visit in Canada In this respect they had a specific and binding obligation to take proper and reasonable steps The restriction of the right of free access of the public to public streets at the strategic point mentioned above was one of the steps--not an unusual one--which police authorities considered and adopted as necessary for the attainment of the purpose aforesaid In my opinion such conduct of the police was clearly falling within the general scope of the duties imposed upon them
In analyzing the second step of the Waterfield test the Court concluded that there was no
evidence indicating the police officers resorted to an unjustifiable use of the powers
associated with the duties imposed on them
The Court in Knowlton recognized broad police powers to cordon off areas as part of the
security arrangements involving internationally protected persons In addition the Court
found that the warrantless arrest in that case was not an unjustifiable or unreasonable use
of powers associated with the police duties to preserve the peace order public safety and
to enforce the law and prevent crime Finally the Court found that peace officers were
duty bound ldquoto prevent a renewal of a like criminal assault on the person of Premier
Kosygin during his official visit in Canadardquo40 Furthermore it stated the closing of public
39 Ibid 40 Ibid at 447
25
streets ldquowas one of the steps -- not an unusual one -- which police authorities considered
and adopted as necessaryrdquo41
The Knowlton decision clearly acknowledged that the police had the duty and authority to
establish and enforce a secured area to protect a foreign dignitary In order to carry out
these duties the police may do what is reasonably necessary in light of the totality of the
circumstances
Though Knowlton was decided prior to the enactment of the Canadian Charter of Rights
and Freedoms (the ldquoCharterrdquo) this does not in my view affect the clear statement by the
Supreme Court of Canada regarding the duty of the police under the common law and the
Alberta Police Act to provide this security While the facts of Knowlton were quite
compelling in relation to the obvious need to provide adequate security for Premier
Kosygin the decision is equally important authority regarding the general responsibilities
of the police at common law and statute in relation to the preservation of the peace
B Other Statutory Powers
1 Criminal Code
Some specific powers are provided to peace officers pursuant to the Criminal Code42
Section 31 gives peace officers the power to arrest an individual for breach of the peace
Peace officers can arrest those committing the breach of the peace or those who on
reasonable grounds heshe believe are about to join in or renew the breach of the peace
Peace officers also have powers at their disposal under ss 63-69 of the Criminal Code to
deal with the offences of unlawful assembly and riots
41 Ibid at 447-448 42 RSC 1985 c C-46
26
2 Trespass to Property Act
The Ontario Trespass to Property Act43 is a potential source of police power to arrest
without warrant those who are unlawfully on certain premises or who were recently
unlawfully on the premises and refuse to give their name and address44 This statute
deals with illegal entry into both private and public property by creating the offence of
trespass for those who without the express permission of the occupier enter on to
premises or engage in an activity on the premises when it is prohibited by the statute45
Though this statute is primarily used by private property owners to keep unwanted people
off of their property it has also been invoked by the Speaker of the House46 and by the
City of Toronto47 It must be noted however that using the Trespass to Property Act in
relation to removing individuals from ldquopublicrdquo places may raise Charter issues48
3 Foreign Missions and International Organizations Act
The RCMP as peace officers have the general duty to preserve the peace and prevent
crime and offences as set out in s 18 of the Royal Canadian Mounted Police Act49
Additional duties found in s 17 of the Royal Canadian Mounted Police Regulations
198850 include the protection of ldquointernationally protected personsrdquo as defined in s 2 of
the Criminal Code Internationally protected persons include heads of state and their
43 RSO 1990 c T2144 Ibid ss 9(1) 1045 Ibid s 2(1)46R v Behrens [2004] OJ No 5135 (CJ) The Court held that the issue of the trespass notices fell under the Speakerrsquos parliamentary privilege and were not reviewable even on the basis of a Charter argument47R v Semple [2004] OJ No 2137 (CJ)48 In R v Semple the defendants were charged under the Ontario Trespass to Property Act for entering the grounds of Toronto City Hall after being banned from doing so In the end the Court held that the defendantsrsquo peaceful entry onto the grounds was an expression as per s 2(b) of the Charter Torontorsquos notice under the Act infringed on this freedom and in these circumstances it could not be justified under s 1 of the Charter 49 RSC 1985 c R-1050 SOR88-361
27
family members The RCMPrsquos duty to protect internationally protected persons is also
found in s 6(1) of the Security Offences Act51
In addition Canada is a signatory of the United Nations Convention on the Prevention
and Punishment of Crimes against Internationally Protected Persons including
Diplomatic Agents52 This Convention provides that the Government of Canada must
protect visiting heads of state or government foreign ministers representatives or
officials of a state or any official or other agent of an international organization of an
intergovernmental character and the family members that accompany him or her The
RCMP has the responsibility to carry out these security measures
Pursuant to s 101(1) of the FMIOA ldquoThe Royal Canadian Mounted Police has the
primary responsibility to ensure the security for the proper functioning of any
intergovernmental conference in which two or more states participate that is attended by
persons granted privileges and immunities under this Act and to which an order made or
continued under this Act appliesrdquo
The powers to carry out this mandate are found in s 101(2) of the FMIOA ldquothe Royal
Canadian Mounted Police may take appropriate measures including controlling limiting
or prohibiting access to any area to the extent and in a manner that is reasonable in the
circumstancesrdquo It is noteworthy that the FMIOA has legislated the same powers
provided to the police under common law and statute
In order to trigger the RCMP powers described in s 101 the Governor in Council on the
51 RSC 1985 c S-752 UNGA Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons including Diplomatic Agents 20 February 1977 UN Doc I-15410
28
recommendation of the Minister of Foreign Affairs and pursuant to s 5 of the FMIOA
made the G8 Summit Privileges and Immunities Order 201053 on December 10 2009
This order was repealed and a subsequent order54 was made on January 13 2010 A
similar order55 for the G20 Summit was made on March 11 201056
Therefore during the G20 the RCMP had the specific statutory power to limit or
prohibit access to any area and to any extent as long as the measures were appropriate
and done in a manner that was reasonable in the circumstances ldquoThe RCMP may secure
the perimeter of the security zone on land with fencing and restrict access to this zone
through the use of checkpoints and other measuresrdquo57
Though not invoked during the G20 s 101(4) of the FMIOA provides that arrangements
can be entered into with a province concerning the responsibilities of members of the
RCMP and members of the provincial and municipal police forces with respect to
ensuring the security for the proper functioning of an intergovernmental conference No
information was provided to me as to why such an arrangement was not entered into for
the G20
These intergovernmental security provisions of the FMIOA were enacted just prior to the
G8 being held in Kananaskis Alberta in 2002 In light of violent protests at international
events and the 911 terrorist attacks in the United States the Federal Government
53 SOR2009-33654 SOR2010-1355 SOR2010-6256 Supra note 17 ldquoUpon such an Order being made the RCMP in co-operation and collaboration with other police forces becomes impressed with the primary responsibility of ensuring not only the protection of the IPPs but also ensuring lsquosecurity for the proper functioningrsquo of the intergovernmental conference To that end the FMIOA provides that the lsquoappropriate measures including controlling limiting or prohibiting access to any area to the extent and in a manner that is reasonable in the circumstancesrsquo may be takenrdquo57 Ibid
29
considered it timely ldquoto clarify in statute the present common law authority for police to
provide security and protection for high profile international eventsrdquo58 At such events it
was intended that ldquothe RCMP is the lead to make sure that security is providedrdquo59
Given that it was clearly the intention of the Federal Government to have the RCMP as
the lead police force at these international events consideration should be given to
expand the use of the FMIOA to cover all large scale international events such as the
Olympics the Pan American Games and international trade fairs as these events are
routinely attended by heads of state and senior government officials Most recently
Vancouver held the 2010 Olympic and Paralympic Winter Games60 Though federal and
municipal legislation were passed to assist in securing the Games expansion and
application of the FMIOA would have been a better approach The RCMP as the national
police force ought to be in charge pursuant to their authority under the FMIOA
4 Emergency Legislation
Through my consultations with the parties listed in Appendix 2 I heard that while we are
not in a time of war as in 1939 when the PWPA was enacted we live in an age of
international and local terrorism threats Our democratic society must be vigilant in
58 Canada House of Commons Debates 37th Parl 1st Sess No 93 (5 October 2001) at 100059 Canada House of Commons Standing Committee on Public Safety and National Security 40th Parl 3rd
Sess Evidence (25 October 2010)60 In anticipation of this event the Governor General in Council on the recommendation of the Minister of Transport pursuant to the Aeronautics Act (RSC 1985 c A-2) and the Canadian Air Transport Security Authority Act (SC 2002 c 9 s 2) passed the Vancouver 2010 Aviation Security Regulations (SOR2009-298) The purpose of the regulations was to enhance aviation security during the Games The Regulation provided for extra security and extra authorized means to conduct screenings In addition the Vancouver City Council passed the very lengthy By-law No 9962 known as the ldquoVancouver 2010 Olympic and Paralympic Winter Games By-Lawrdquo Specific security measures to be employed at a city live site (described thoroughly in a Schedule to the By-Law) that were enabled by this By-Law included The installation and monitoring of airport style and other security measures including magnetometers and X-ray machines the installation and monitoring of closed circuit television cameras the searching of any person who wished to enter on to a city live site and any bag luggage or other container carried by such person and the prohibiting of access to or removal from a city live site any person who refused to submit to a search
30
maintaining a proper level of security while recognizing that democratic values and
security issues can conflict where public order is at issue It is important to highlight that
provincial legislation exists dealing with both terrorism threats and emergency situations
I have been informed that federal and provincial counter-terrorism plans exist that
address preventing and responding to acts of terrorism
The Police Services Act regulations mandate police forces to establish procedures
consistent with federal and provincial counter-terrorism plans61 and to have policies with
respect to counter-terrorism62 In addition the Emergency Management and Civil
Protection Act allows for orders to be made in situations specifically designated an
ldquoemergencyrdquo63 by the Lieutenant Governor in Council or the Premier that regulate or
prohibit travel and movement to from or within any specified area64 Therefore the
PWPA is not needed to deal with these emergency situations as specific more recent
emergency legislation is in place for that very purpose
C Gaps in Canadian Police Powers
The Ministry of Community Safety and Correctional Services provided me with an
interesting article published in 2010 entitled ldquoThe Gap in Canadian Police Powers
61 Adequacy and Effectiveness of Police Services O Reg 399 s 2862 Ibid s 2963 Section 1 of the Emergency Management and Civil Protection Act defines an ldquoemergencyrdquo as ldquoemergencyrdquo means a situation or an impending situation that constitutes a danger of major proportions that could result in serious harm to persons or substantial damage to property and that is caused by the forces of nature a disease or other health risk an accident or an act whether intentional or otherwise (ldquosituation drsquourgencerdquo)64 RSO 1990 c E9 s 702(4)
31
Canada needs lsquoPublic Order Policingrsquo Legislationrdquo and co-authored by Wesley Pue and
Robert Diab65
This article was prompted by the debate over the cost nature and extent of security to be
employed at the Vancouver 2010 Winter Olympics The authors criticized the fact that
policing authorities in Canada ldquolack specific statutory authorization to take measures
commonly thought necessary to their missionrdquo66 These measures included security
fences in public areas designated protest areas restricted access to public space police
surveillance and searches without cause
The authors recognize that such powers may be necessary but note that ldquono legislature
has ever expressly conferred such powers on policing authorities outside the context of
international intergovernmental conferences Nor does the common law accord such
powers to state officials on its ownrdquo67 I respectfully disagree with this latter statement
It is my view the police have powers pursuant to the common law and statute as I have
discussed in the preceding section
The authors referred to R v Knowlton68 which I have previously discussed While the
authors give Knowlton a very narrow interpretation stating that ldquoits binding principle is a
good deal narrower than the words taken out of context might suggestrdquo69 I however am
of the view that the decision supports the proposition that police have a broad range of
65 Wesley Pue and Robert Diab ldquoThe Gap In Canadian Police Powers Canada Needs lsquoPublic Order Policingrsquo Legislationrdquo (2010) 28 Windsor Rev Legal Soc Issues 87 Wesley Pue is a professor of legal history at the University of British Columbia and Robert Diab is a PhD candidate at the UBC Faculty of Law66 Ibid p 8867 Ibid68 Supra note 3469 Supra note 65 p 92
32
responsibilities with deep historical roots in the common law and codified in statute a
position shared by the Federal Government when it introduced amendments to the
FMIOA The actions of the police in Knowlton were necessarily incidental to their
common law police duties and powers
The authors conclude that this ldquoauthority of police to create zones of exclusion either as
an incident of the general and ancient duties of constableshelliphas never been established in
the courtsrdquo70 I am of the view however that the role of the police in establishing
security zones relating to a crime a serious accident or other emergency is a routine and
well-accepted use of police powers pursuant to their common law and statutory duties I
am not suggesting that this common law authority permits the police to establish security
zones ldquofor the proper functioning of any intergovernmental conference in which two or
more states participaterdquo71 larger than necessary to fulfill their purpose The FMIOA as
amended in 2002 provides the RCMP with ldquoprimary responsibility to ensure the security
for the proper functioning of the intergovernmental conferencerdquo72 It is interesting
however that when the Federal Government was enacting this specific authority the
legislative debates indicated that the government was merely clarifying ldquoin statute the
present common law authority for police to provide security and protection for high
profile international eventsrdquo73
Security perimeters are routinely erected by police in the context of the commission of a
crime motor vehicle and other accidents as well as the Santa Claus parade and other
70 Ibid p 9671 Supra note 8 s 101(1)72 Ibid73 Supra note 58
33
parades It would in my view be quite impractical and unnecessary to legislate an
extensive code of police powers given their common law and statutory responsibilities to
generally maintain public order It is not advisable in my opinion to be prescriptive in
any way regarding what actions the police can take since they must assess what the
situation warrants while at the same time considering individual rights and freedoms
The details of any police response to an emergency must be tailored to the exigencies
related to the situation
The police clearly have common law and statutory authority to conduct warrantless
searches in specific situations (ldquoin exigent circumstancesrdquo)74 However when
warrantless searches must be carried out on a regular routine basis the police are acting
more like full time security guards and there should be specific statutory authority
provided to give such powers
I certainly accept the general proposition the authors assert that the mobility rights of
citizens should not be unreasonably or unfairly dealt with However one only need be
aware of the massive amount of construction taking place on the streets of Toronto as this
Report is being written to appreciate that it is not always reasonable to expect that ldquothe
rights of businesses homeowners and ordinary citizens to go about their routine
activities without interruptionrdquo75 will go unhindered While generally desirable it cannot
be legally guaranteed At the same time the authors do concede that ldquoimportant as they
74 Supra note 42 s 4871175 Supra note 65 p 89
34
are the rights of assembly movement and protest are not unqualified They can ndash and
should ndash be balanced against other important public needsrdquo76
In my view public policing at times requires innovation as it often benefits from
creative problem solving If police abuse their common law powers related to ldquopublic
order policingrdquo they are accountable to a multiplicity of authorities and the rule of law
most particularly the Charter The legal rights outlined in the Charter such as ldquothe
principles of fundamental justicerdquo77 security ldquoagainst unreasonable search and seizurerdquo78
and ldquothe right not to be arbitrarily detained or imprisonedrdquo79 are described very
generally However they were chosen deliberately as it was recognized that in each case
there is an inherent tension between imposing security measures and fundamental rights
and freedoms Determining which is paramount will be based on the facts of each case
76 Ibid p 9177 Canadian Charter of Rights and Freedoms s 7 Part I of the Constitution Act 1982 being Schedule B to the Canada Act 1982 (UK) 1982 c 1178 Ibid s 879 Ibid s 9
35
SECTION 5 LEGAL ANALYSIS OF THE PUBLIC WORKS PROTECTION ACT
A Legal Analysis of the Legislation
Many stakeholders have questioned the constitutional validity of the PWPA and O Reg
23310 The Ontario Ombudsman seriously questioned whether O Reg 23310 could
pass ldquoconstitutional musterrdquo80 The CCLA suggested that the broad police powers
granted under the PWPA were inconsistent with the Charter81
To the same effect were comments made by Premier Dalton McGuinty who described
the PWPA as ldquoan archaic law that was used to undermine Torontoniansrsquo civil rights
during the G20rdquo82 He elaborated83
The issue is whether itrsquos appropriate given our present-day values and given an old law which I am confident doesnrsquot strike the balance that you and I would want today in terms of public safety and individual freedom of expressionhellipWhen you start talking about civil rights individual freedoms yoursquore talking about those things that in fact define us as a free and democratic societyhellipItrsquos something that is real and meaningful and important to all of us
The Terms of Reference for this Review do not require that I conduct a constitutional
analysis of the PWPA I have however been asked to consider areas for reform and if
appropriate make specific recommendations for amendment or repeal This does require
that I therefore consider whether the legislation may be vulnerable to constitutional
challenge
Section 2(b) of the Charter guarantees everyone the fundamental freedom of expression
The definition of ldquoexpressionrdquo has been interpreted broadly ldquoActivity is expressive if it
80 Supra note 32 at para 23381 Supra note 26 p 982 Robert Benzie and Rob Ferguson ldquoMcGuinty shifts focus to fixing G20 lawrdquo Toronto Star (10 December 2010) online thestarcom lthttpwwwthestarcomnewscanadaarticle905436--mcguinty-shifts-focus-to-fixing-g20-lawgt 83 Ibid
36
attempts to convey meaningrdquo84 While freedom of expression is not absolute there is
very little that is not considered expression However expression that advocates violence
is not protected under s 2(b)85
The Supreme Court of Canada in Committee for the Commonwealth of Canada v
Canada held that s 2(b) ldquodoes not encompass the right to use any and all government
property for purposes of disseminating onersquos views on public matters but I have no doubt
that it does include the right to use for that purpose streets and parks which are dedicated
to the use of the public subject no doubt to reasonable regulation to ensure their
continued use for the purposes to which they are dedicatedrdquo86 It seems clear that
protesting in public streets is a form of expression protected by s 2(b) Protesting at an
intergovernmental conference is clearly expressive in nature
In challenges alleging that a statute contravenes s 2(b) of the Charter a court would
examine whether the purpose or effect of a law contravenes section 2(b)87 There is no
reason to suggest that the purpose of the PWPA was to infringe the freedom of
expression The purpose of the PWPA is to protect important public infrastructures A
court would then have to consider whether the effect of the PWPA may have resulted in
an infringement of freedom of expression
O Reg 23310 defined significant portions of downtown Toronto as a ldquopublic workrdquo
Section 3(c) of the PWPA allows peace officers to refuse entry into public works which
therefore limits the areas in which protesters could express themselves By creating the
84 Irwin Toy Ltd v Queacutebec (Attorney General) [1989] 1 SCR 927 at 96885 Ibid at 97086 [1991] 1 SCR 139 at 165-16687 Peter Hogg Constitutional Law of Canada loose-leaf (consulted on 7 January 2011) 5th ed (Toronto Thomson Reuters Canada Limited 2007) at 43-6
37
relatively large security perimeter designated by the regulation individuals may allege
they were not permitted to communicate directly with those they were protesting against
Furthermore individuals could not communicate in public places such as public streets
where the right to freedom of expression has previously been found to exist88
Commissioner Ted Hughes completed an interim report following a public hearing into
the complaints regarding events that took place with respect to the Asia Pacific Economic
Cooperation (APEC) Conference in Vancouver British Columbia in November 1997
Commissioner Hughes recommended that generous opportunity should be afforded to
peaceful protesters to be seen in their protest activities by guests at the event89
Section 7 of the Charter provides that ldquoEveryone has the right to life liberty and security
of the person and the right not to be deprived thereof except in accordance with the
principles of fundamental justicerdquo The PWPA raises issues regarding the liberty and
security of the person in providing for warrantless searches and stopping for
identification Furthermore vague laws offend two fundamental values of our legal
system90 Firstly individuals are not provided with sufficient guidance as to what
behaviour a law prohibits Secondly those in charge of enforcing the law are not
provided with clear guidance as to how to enforce it A vague law can lead to inconsistent
and arbitrary enforcement91
88 Supra note 86 89 Canada Commission for Public Complaints Against the RCMP APEC ndash Commission Interim Report (31 July 2001) at s 3111 (Commissioner Ted Hughes QC) online Commission for Public Complaints Against the RCMP lthttpwwwcpc-cppgccaprrrepphrapecapec-31-engaspxgt90 Supra note 87 at 47-60 91 ldquoA vague provision does not provide an adequate basis for legal debate that is for reaching a conclusion as to its meaning by reasoned analysis applying legal criteria It does not sufficiently delineate any area of risk and thus can provide neither fair notice to the citizen nor a limitation of enforcement discretion Such
38
As described by Professor Hogg92
The requirement that any limit on rights be prescribed by law reflects two values that are basic to constitutionalism or the rule of law First in order to preclude arbitrary and discriminatory action by government officials all official action in derogation of rights must be authorized by law Secondly citizens must have reasonable opportunity to know what is prohibited so that they can act accordingly Both these values are satisfied by a law that fulfils two requirements (1) the law must be adequately accessible to the public and (2) the law must be formulated with sufficient precision to enable people to regulate their conduct by it and to provide guidance to those who apply the law
As I stated earlier the phrase ldquoany approach theretordquo contained in s 3(a) of the PWPA is
potentially vague No criteria are provided to assist in determining when one is on ldquoany
approach theretordquo A phrase such as ldquoany approach theretordquo is subject to many potential
interpretations It is arguable that this language does not provide reasonable guidance for
individuals to obey the law and for the law to be consistently enforced
Section 8 of the Charter provides that ldquoEveryone has the right to be secure against
unreasonable search or seizurerdquo A warrantless search or seizure is only reasonable if the
search was authorized by law the law itself is reasonable and the manner in which the
search carried out was reasonable93 The fact that no reasonable or probable suspicions
are needed to carry out a search pursuant to s 3(b) of the PWPA raises some issues The
only prerequisite to such a search is that the person or vehicle being subjected to a search
is entering or attempting to enter a public work
a provision is not intelligible to use the terminology of previous decisions of this Court and therefore it fails to give sufficient indications that could fuel a legal debaterdquo (R v Nova Scotia Pharmaceutical Society [1992] 2 SCR 606 at 639-640) 92 Supra note 87 at 38-1293 R v Nolet [2010] SCJ No 24 at para 21
39
Whether the PWPArsquos s 3(b) authority to undertake warrantless searches is ldquoreasonablerdquo
depends on the reasonableness of the impact on the subject of the search ldquoThe
individuals reasonable expectation of privacy must of course be balanced against the
public interest in effective law enforcementrdquo94 It is harder to justify a warrantless search
where the reasonable expectation of privacy is higher For example interference with
bodily integrity will raise the standard of reasonableness Conversely in situations where
people expect to have a lower level of privacy the standard to prove reasonableness is
lower
One rightfully has some expectation of privacy when in public but it does not rise to the
level of privacy that one expects in onersquos home The expectation of privacy further
decreases when one attempts to enter a ldquopublic workrdquo especially in the context of a
secured barrier to an intergovernmental conference
Section 9 of the Charter provides that ldquoEveryone has the right not to be arbitrarily
detained or imprisonedrdquo95 Under s 3(a) of the PWPA a person entering or attempting to
enter or approach a public work must provide his or her name and address and state the
purpose for which he or she desires to enter the public work In order for a guard or
peace officer to carry out this duty the guard or peace officer may ldquostoprdquo the person from
further approaching or entering the public work and the person is not permitted under the
statute to decide not to enter By so doing it is arguable the guard or peace officer has
assumed control over the movement of the individual by a demand or direction The
94 R v Rao [1984] OJ No 3180 at para 79 (CA)95 ldquoDetention under s 9hellipof the Charter refers to a suspension of the individualrsquos liberty interest by a significant physical or psychological restraint Psychological detention is established either where the individual has a legal obligation to comply with the restrictive request or demand or a reasonable person would conclude by reason of the state conduct that he or she had no choice but to complyrdquo (R v Grant [2009] SCJ No 32 at para 44)
40
PWPA provides for a significant legal consequence if the demand or direction is not
followed since ldquoEvery person who neglects or refuses to comply with a request or
direction made under this Act by a guard or peace officer and every person found upon a
public work or any approach thereto without lawful authority the proof whereof lies on
him or her is guilty of an offence and on conviction is liable to a fine of not more than
$500 or to imprisonment for a term of not more than two months or to bothrdquo96
Pursuant to s 3(b) of the PWPA a guard or peace officer may search any person entering
or attempting to enter a public work These searches would necessitate the detention of a
person If a guard or peace officer performs such a search he or she has taken control
over the movement of the person by a demand or direction The same serious legal
consequence results from failing to obey this demand or direction as that which results
from failing to obey the demand or direction pursuant to s 3(a) of the PWPA As a
result ldquodetentionsrdquo could occur pursuant to both s 3(a) and s 3(b) of the PWPA
The question that would need to be addressed in any challenge to the PWPA is whether
the detentions permitted by the PWPA are arbitrary in nature The use of the term ldquoany
approach theretordquo is vague and imprecise A person could be deemed to be on ldquoany
approach theretordquo a great distance from the entrance of a public work and their detention
might very well be arbitrary In addition the fact that the guards and peace officers
determine the boundaries of the ldquoapproachesrdquo which cannot be contested seems
arbitrary as well as who they chose to search
96 It should be noted that not all communications with state authorities and police officers will amount to a detention The question is whether a person may reasonably believe that he or she is free to refuse to comply
41
Section 11(d) of the Charter provides that ldquoAny person charged with an offence has the
right to be presumed innocent until proven guilty according to law in a fair and public
hearing by an independent and impartial tribunalrdquo This requires that the Crown have the
burden of proving the guilt of an individual charged with an offence97 Provisions that
place the burden on the accused to disprove on the balance of probabilities an essential
element of an offence raises s 11(d) concerns because convictions would be possible
even if reasonable doubt existed98 The presumption of innocence is not only infringed
upon by a requirement that an accused disprove an essential element of an offence but
also any requirement on an accused to prove a fact on the balance of probabilities to
avoid conviction
Section 5(1) of the PWPA states that ldquoEvery person who neglects or refuses to comply
with a request or direction made under this Act by a guard or peace officer and every
person found upon a public work or any approach thereto without lawful authority the
proof whereof lies on him or her is guilty of an offence and on conviction is liable to a
fine of not more than $500 or to imprisonment for a term of not more than two months or
to bothrdquo For the offence of being found upon a public work or on any approach to a
public work without lawful authority the burden of proof has been ldquoshiftedrdquo from the
Crown to the accused to prove lawful authority
As the foregoing analysis reveals there are certainly many concerns that arise when one
places the PWPA under the lens of the Charter However the rights and freedoms
provided by the Charter are not absolute They are ldquosubject only to such reasonable
97 R v Oakes [1986] 1 SCR 10398 Ibid at 132
42
limits prescribed by law as can be demonstrably justified in a free and democratic
societyrdquo99
In assessing whether a law which infringes the Charter is saved by s 1 a court examines
both the object of the law and the measures taken to achieve that objective A lawrsquos
objective achieves the status of being sufficiently important to justify overriding a
Charter right only when it is consistent with the values of a free and democratic society
The objective must relate to pressing and substantial concerns and not concerns that are
trivial and must be focussed on ldquothe realization of collective goals of fundamental
importancerdquo100 The measures adopted must be ldquorationally connectedrdquo to the objective of
the law101 The measures ldquoshould impair lsquoas little as possiblersquo the right or freedom in
questionrdquo102 Furthermore there must be ldquoa proportionality between the effects of the
measures which are responsible for limiting the Charter right or freedom and the
objective which has been identified as of lsquosufficient importancersquordquo103
An issue that may affect whether the potential limitation on rights and freedoms of the
PWPA and O Reg 23310 were ldquoprescribed by lawrdquo is whether the regulation was
adequately accessible to the public The Ontario Ombudsman the CCLA and the Ontario
Bar Association (ldquoOBArdquo) all noted a lack of notice regarding O Reg 23310 and its
effects prior to and during the G20 While the text of the regulation was available prior
99 Charter s 1 The Superior Court of Quebec decision of Tremblay v Queacutebec (Attorney General) [2001] JQ No 1504 (CS) involved an interim injunction brought by an applicant who was denied entry into the secured perimeter during the 2001 Summit of the Americas in Queacutebec City The applicant sought an injunction to either eliminate the security barrier or to be given a pass to let him within the secured perimeter Even though the Court held that the erection of the security zone violated the applicantrsquos right to freedom of expression and peaceful assembly The court held that the infringement was ldquodemonstrably justified in a free and democratic societyrdquo100 Supra note 97 at 136101 Ibid at 139102 Ibid103 Ibid
43
to the G20 it was only available on a website not frequently accessed by the public
Since O Reg 23310 was not published in The Ontario Gazette until after it was
revoked it may be that the regulation was not adequately accessible to the public
Reverse onus offences have been found to be ldquorationally connectedrdquo when there is plainly
a rational connection between the proven fact and the fact to be presumed Reverse
onuses have also been upheld when the burden placed on the Crown would be virtually
impossible to meet (such as proving sanity)104 Even if the accused only has the burden
of disproving the fact that heshe did not have lawful authority to be in a public work or
on an approach thereto there may not be a rational connection between the proven fact
and the fact to be presumed
The history of threats and violence at previous intergovernmental conferences
demonstrated that the protection of G20 participants was a pressing and substantial
concern However given the broadness of the PWPA every exercise of it raises the
potential for Charter scrutiny
Recommendation
Given the public policy considerations I have raised regarding the PWPA and Charter
concerns that could arise I recommend that the PWPA be repealed after the Province has
considered potential policy and security gaps as a result of its repeal
B Other uses of the Public Works Protection Act
It appears from my consultations with stakeholder groups that if the PWPA is repealed
104 R v Chaulk [1990] 3 SCR 1303 at 1340
44
there are two areas which may require legislation to provide specific peace officer
powers These two areas are court security and the protection of nuclear power facilities
and other power generating infrastructures
1 Court Security
During my decade as Ontariorsquos Attorney General (1975 to 1985) there were three
murders in provincial courthouses as well as many threats to members of courthouse staff
and others As violent acts in courthouses can be anticipated courtroom security is often
required
Individuals are compelled to go to court for a variety of reasons such as appearing as an
accused as a witness or for jury duty To provide protection to those who work there or
are compelled to attend an adequate level of court security may require a search without
warrant of each and every individual who seeks to enter a courthouse It is not reasonable
to require prior judicial authorization for each search that takes place
The courts have considered the constitutionality of these provisions of the PWPA in
conjunction with section 137 of the Ontario Police Services Act in the context of court
security
Section 137 of the Ontario Police Services Act imposes a responsibility on municipal
police services boards to secure the premises where court proceedings are conducted and
includes
1 Ensuring the security of judges and of persons taking part in or attending proceedings
45
2 During the hours when judges and members of the public are normally present ensuring the security of the premises
3 Ensuring the secure custody of persons in custody who are on or about the premises including persons taken into custody at proceedings
4 Determining appropriate levels of security for the purposes of paragraphs 1 2 and 3
In R v Campanella105 Ms Campanella was attending the John Sopinka Courthouse in
Hamilton At the courthouse there were signs posted stating that those who entered
would be searched for weapons When Ms Campanellarsquos bag was searched marijuana
was found and she was charged with the possession of marijuana She argued that her s
8 Charter protection against unreasonable search and seizure had been violated and the
marijuana discovered during the search should therefore be excluded as evidence The
trial judge and the summary convictions appeal court rejected the section 8 Charter
argument and the appellant appealed to the Ontario Court of Appeal
The Ontario Court of Appeal agreed that ldquogiven the importance of the government
objective and the context in which these searches take place it is reasonable to authorize
warrantless searches of those entering courthouse facilitiesrdquo106 The Court stated ldquothe
only effective way to diminish the risk in a large courthouse is to subject everyone
without prior security clearance to some kind of inspection I can see no other feasible
means of achieving the aimrdquo107
The Court also pointed out the concern relating to the erosion of the benefits and
105 [2002] OJ No 5104 (SCJ) affrsquod [2005] OJ No 1345 (CA) [ldquoCampanellardquo]106 R v Campanella [2005] OJ No 1345 at para 17 (CA)107 Ibid at para 19
46
protections conferred by s 8 of the Charter108
I am sensitive to the concern that we should not erode the benefits and protections of s 8 by gradually sanctioning ever-greater intrusions into privacy because of unfounded fears We should not lightly accept that searches in public places are justified solely because people have become used to them and expect them However the record in this case establishes the justification for the kinds of searches carried out in this case
Ultimately the appeal was dismissed and s 137 of the Police Services Act and s 3(b) of
the PWPA) were held to comply with s 8 of the Charter109
In its consultations with me the OBA similarly stated that the existing nature of court
security is necessary and is generally ldquowell toleratedrdquo At the same time however it
submits that the security regime should not be ldquoshoehornedrdquo into the PWPA regime and
that it would be preferable to provide a legislative framework tailored for the specific
security requirements While the PWPA has been relied upon as support for the exercise
of powers by the police in providing court security the OBA submits that the PWPArsquos
ldquosingle security schemerdquo which declares something a ldquopublic workrdquo is an ldquoawkward
blunt instrument in a world where more specialized tools are necessaryrdquo When
warrantless searches are being done on a routine basis it is advisable to have specific
legislation providing peace officers with such power
Recommendation
Court security legislation is currently in place in many jurisdictions across Canada and
contain provisions that permit warrantless searches of persons wanting to access a
108 Ibid at para 25109 The Court in R v SS [2005] OJ No 5002 (SCJ) agreed with the findings and rationale of the Court of Appeal in Campanella
47
courthouse The constitutional validity of such legislation in Manitoba was upheld by that
provincersquos highest court110
Given the ongoing need for warrantless searches at courthouses the Province of Ontario
should consider specific court security legislation in Ontario to support the security
measures in our courthouses if the PWPA is to be repealed taking into consideration the
responsibilities of the municipal police services boards provided in s 137 of the Police
Services Act This legislation should only be passed after proper notice consultation and
legislative debate
2 Power Generating Infrastructures
It is clear from the submissions that I received from representatives of OPG and the
Canadian Nuclear Safety Commission (ldquoCNSCrdquo) that the PWPA currently plays a role in
providing security officers with the powers to secure power generating infrastructures
including the ability to carry firearms and the ability to stop and require identification
from those in proximity to those nuclear plants
Security is of the utmost importance in protecting a nuclear power plant Members of the
public do not need to access a nuclear or similar power facility unless employed at the
facility or carrying out work for the facility111
The security of areas within nuclear power plants is governed by the Nuclear Security
110 R v Lindsay [2004] MJ No 380 (CA) 111 Though the discussion focuses on nuclear power plants I have been informed that other power generating infrastructures use the PWPA to designate their security officers as guards As a result if the PWPA is repealed it will be necessary to broaden the consultations in relation to these other power generating infrastructures
48
Regulations112 Every nuclear power plant must be located within a ldquoprotected areardquo113
This protected area is the area within a fenced perimeter which is alarmed and
continually patrolled This area must be equipped with devices that employ two
independent systems to detect intrusion into the area114 The Nuclear Security
Regulations also provide detailed specifications for the barrier which must enclose the
protected area115 In addition licensees must ldquoidentify all vital areas and implement
physical protection measures ndash including access control and measures designed to delay
unauthorized accessrdquo116
The Nuclear Security Regulations also provide detailed provisions regarding entry into
protected areas No person can ldquoenter a protected area without physical proof of the
recorded authorization of the licenseerdquo117 Further to this on entry into a protected area
ldquothat personrsquos identity shall be verified by two separate personnel identity verification
systems one of which is an access card reader and the other of which is a biometric
personnel identity verification devicerdquo118 Licensees must also ldquoensure that vehicle
portals are used for the entry and exit of land vehicles into and from a protected areardquo119
Physical protection measures are also required to reduce the chance of a forced land
vehicle entry into a protected area120
The power to conduct searches upon entry to a protected area is also provided by the
112 SOR2000-209 113 Ibid s 8114 Ibid s 11(a)(i)115 Ibid s 9116 Ibid s 141117 Ibid s 17(1)118 Ibid s 171119 Ibid s 91(1)120 Ibid s 91(4)
49
Nuclear Security Regulations Signs must be posted that are visible to people about to
enter the protected area stating that they must allow a nuclear security officer (ldquoNSOrdquo) to
ldquosearch them and everything in their possession including any land vehicle for weapons
and explosive substancesrdquo121 In addition when leaving the protected area people must
allow NSOs to ldquosearch them and everything in their possession including any land
vehicle for Category I II or III nuclear materialrdquo122 People are not permitted to enter or
leave a protected area unless these searches are carried out123 The Nuclear Security
Regulations provide for the method of search including ldquoa hand-held scanner a walk-
through scanner or any similar devicerdquo124 In addition if an NSO determines it
necessary a frisk search can be carried out by a person of the same sex125
I have been informed that the area outside of but adjacent to the ldquoprotected areardquo is
referred to as the ldquocontrolled areardquo This area includes roadways and waterways within
the nuclear facilityrsquos property boundaries adjacent to or in close proximity to the nuclear
power plantrsquos protected area and may be generally accessible to the public
As a result of the September 11 2001 terrorist attacks the Nuclear Security Regulations
were amended to require that high security nuclear facilities maintain an on-site armed
Nuclear Response Force (ldquoNRFrdquo)126 The NRF is composed of specialized NSOs
Section 32 of the Nuclear Security Regulations requires the NRF to be capable of making
an effective intervention taking into account the threat
121 Ibid s 27(1)(a)122 Ibid s 27(1)(b)123 Ibid s 27(2)124 Ibid s 27(5)(a)125 Ibid s 27(5)(b)126 Ibid s 32
50
Members of the NRF are mandated by the Nuclear Security Regulations to be ldquotrained in
the use of firearms authorized to carry firearms in Canada and qualified to use themrdquo127
However to satisfy this requirement the NRF resorts to the PWPA since the federal
regulations do not authorize the NRF to carry firearms without a licence However
under s 2(1) of the PWPA NSOs are designated as ldquoguardsrdquo with the powers of a peace
officer most significantly to carry and use firearms without having to be licensed128
Such a designation also enables the OPG to acquire and dispose of firearms
In the consultations I had with the OPG and the CNSC they advised me that NSOs
receive training equivalent to Canadian police standards and that NRF officers receive
training equivalent to federal and provincial police tactical team requirements
Another aspect of the PWPA used to secure nuclear power plants relates to powers
exercised by NSOs in ldquocontrolled areasrdquo The federal regulations do not provide the
NSOs with any power to demand identification within this area However pursuant to
the PWPA as appointed ldquoguardsrdquo the NSOs have the power to demand identity
verification in the controlled area They also have the authority to arrest anyone who
obstructs NSOs in the performance of their duties under the PWPA
In addition to using the PWPA to secure the controlled areas I have been advised by the
OPG that NSOs use powers pursuant to the PWPA to secure areas within 100 metres of a
nuclear facilityrsquos property line immediately adjacent to the controlled area These powers
are exercised under the broad language of the PWPA regarding ldquoapproaches to public
127 Ibid s 1 (on-site nuclear response force definition)128 Section 11707 of the Criminal Code exempts peace officers from licensing requirements for possessing firearms and other prohibited and restricted weapons
51
worksrdquo This is an illustration of the problem with the vagueness of this language in the
legislation As these powers are exercised on public land they could be challenged as a
potential infringement on individual rights and freedoms However I have been advised
that there have been no such incidents to date The need to ensure the security of these
facilities must be taken into the balance
NSOs must be able to monitor and control access to the controlled areas and areas close
to a nuclear power plantrsquos property line This provides for a more secure perimeter
around these facilities They need authority to challenge individuals acting in a suspicious
manner or conducting surveillance of nuclear facilities The OPG has informed me that
areas outside a nuclear facilityrsquos property line immediately adjacent to the controlled
area are still close enough to take advantage of the short distance to conduct intelligence
using high-powered surveillance equipment These nuclear power plants are not located
on isolated islands and are therefore vulnerable Both the Pickering Nuclear Generating
Station and the Darlington Nuclear Generating Station operate within major urban areas
being 30 km and 60 km east of downtown Toronto respectively I am advised that
previous events such as ldquoThe Toronto 18rdquo129 have shown that those intent on targeting
vital infrastructure such as power generating facilities often use reconnaissance and
intelligence gathering as precursor tactics
Recommendation
If the PWPA is to be repealed it is imperative that those who secure our nuclear and
power generating facilities be given the requisite specific legislative powers to do so
129 See for example ldquoLast 2 Toronto 18 accused found guiltyrdquo CBC News (23 June 2010) online cbcca lthttpwwwcbccanewscanadatorontostory20100623toronto-18-verdicthtmlgt
52
The source for these powers should be set out in the federal Nuclear Security
Regulations However if this is not a desired option the Government of Ontario must
consider specific legislation setting out the specific powers required to properly secure
these facilities and the specific location in which these powers can be exercised Such
legislation should not be passed without proper notice consultation and legislative
debate
53
SECTION 6 CONCLUSION
The PWPA was enacted in 1939 to support the war effort At the time the protection of
Ontariorsquos hydroelectric facilities from sabotage was of particular concern Since then the
PWPA has been used to provide the legal foundation for the powers exercised by the
police in providing court security and even more recently by the OPG in securing
nuclear power facilities In June 2010 the PWPA was used to provide powers to secure
intergovernmental conferences The vagueness of the PWPA permits it to be used in
situations when it is arguably not necessary and potentially abusive In my view the
PWPA has been used for purposes beyond its original intent
The time for the PWPA seems to have passed If the Government of Ontario enacts as I
have suggested specific legislation to provide for courthouse security and power
generating infrastructure security it would appear that there is no longer a need for the
PWPA I am also mindful of the existence of counter-terrorism and emergencies
legislation to deal with these situations as they arise
ldquoIn determining the boundaries of police powers caution is required to ensure the proper
balance between preventing excessive intrusions on an individualrsquos liberty and privacy
and enabling the police to do what is reasonably necessary to perform their duties in
protecting the publicrdquo130 The overly broad and vague language of the PWPA does not
strike this required balance with individual rights and freedoms
The late Justice Jackson of the United States Supreme Court stated that every
emergency power once conferred ldquolies about like a loaded weapon ready for the hand of
130 R v Clayton [2007] 2 SCR 725 at 742
54
any authority that can bring forward a plausible claim of an urgent needrdquo131 The need to
protect the public must be balanced with the requirement to preserve fundamental rights
and freedoms
Yet at the same time ldquoCanadians are entitled to demand the best public order policing
possible from their governmentrdquo132 There is no question that we live in a different world
post 911 We live in difficult times with constant threats both domestically and from
abroad The police clearly need to be given adequate powers to carry out their duties
The police use their expertise on a daily basis to assess the powers they require In
instances when they take action that exceeds their powers their actions are examined by
various mandated bodies This process I believe results in the proper balance between
police powers and individual rights and freedoms Therefore any legislation that purports
to grant special police powers must be specific and direct and developed in consultation
with stakeholders and tested through thorough debate in our transparent democratic
system
131 Korematsu v United States 323 US 214 (1944)132 Supra note 26 p 8
55
Boulevard then north along the west edge of that driveway and ending at Bremner Boulevard
2 The area within the area described in Schedule 1 that is within five metres of a line drawn as follows
Beginning at the southwest point of the building known as 73 Navy Wharf Court then east along the exterior of the south wall of that building then north along the exterior of the east wall of that building and ending at the curb of Blue Jays Way
3 The below-grade driveway located between Union Station and Front Street West and running between Bay Street and York Street in the City of Toronto
F Information Given to Public Regarding Security Protocol
Attempts were made to inform the public about the security measures that would be in
place leading up to and throughout the G20 The City of Toronto in consultation with
the ISU produced an information article20 and flyers21 No mention is made in the article
or flyers of the PWPA or O Reg 23310 and the powers given to the police The City of
Toronto also prepared an advertisement which appeared in local newspapers22 The
original version of the advertisement made no reference to the fact that people would be
subject to a search when attempting to access the security perimeter although reference
was made to the requirement to show identification and to have a valid purpose for
entering the restricted area A later version of the advertisement included additional text
advising that anyone requesting access to the security perimeter may be subject to a
search However just as with the article and flyers no specific mention was made of the
PWPA or O Reg 23310
20 A million copies of the newsletter Our Toronto which contained an article entitled ldquoWhat to expect during the G20 ndash June 26 amp 27 2010rdquo were delivered to homes in the City of Toronto21 Approximately 10000 flyers were sent to homes and businesses within the affected area The flyercontained general information about security and the anticipated effects on traffic22 The advertisement appeared in the Toronto Star Toronto Sun and Metroland community papers
16
In the days leading up to and throughout the G20 Summit there was apparently a
misunderstanding on the part of the police regarding a purported ldquofive-metre rulerdquo This
confusion likely emanated from the ldquofive-metresrdquo referenced in Schedule 2 of O Reg
23310 However the purpose of Schedule 2 was to designate as ldquopublic work(s)rdquo three
specific private property locations on which the security fence was to be erected that were
not ldquopublic worksrdquo The remainder of the fence was on public sidewalks and streets
which are ldquopublic worksrdquo To ensure that the fence was located on a ldquopublic workrdquo the
drafters designated the area within five metres of the security fence in these three
locations as a ldquopublic workrdquo23 Unfortunately the wording of Schedule 2 was very
cumbersome and the relationship between the area defined in Schedule 1 and the five-
metre reference in Schedule 2 was difficult to understand
Because of this confusion unfortunately the message was conveyed that the regulation
provided for a five-metres zone outside the entire security fence and that therefore the
PWPA applied to this entire area24 The media reported during the G20 summit that the
police had ldquosweepingrdquo powers pursuant to the PWPA within five-metres outside of the
exterior security fence25 O Reg 23310 did not provide the police such authority
23 Attached as Appendix 10 is a copy of a map showing the three specific areas designated in Schedule 2 of O Reg 2331024 Jennifer Yang ldquoJust being near the G20 security zone can get you arrestedrdquo Toronto Star (25 June 2010) online thestarcom lthttpwwwthestarcomnewsgtatorontog20summitarticle828498--just-being-near-the-g20-security-zone-can-get-you-arrestedgt25 David Rider et al ldquoDalton McGuinty Bill Blair defend quiet boost in arrest powersrdquo Toronto Star (26 June 2010) online thestarcom lthttpwwwthestarcomnewsgtatorontog20summitarticle828974--dalton-mcguinty-bill-blair-defend-quiet-boost-in-arrest-powersgt
17
SECTION 3 COMMENTARY
A Public Policy Considerations
There are some overarching public policy considerations which affect the issues I have
been asked to address in the Terms of Reference
As stated earlier the legislation was the product of emergency World War II concerns
related to the possibility of enemy sabotage of important infrastructures The legislative
debates in September of 1939 were particularly concerned with the provincersquos
hydroelectric facilities However notwithstanding these apparently specific concerns
when drafted the definition of ldquopublic workrdquo is extraordinarily broad and from a policy
standpoint raises questions of overbreadth especially given the ability to designate
almost anything a public work In a mere definition section s 1 of the legislation allows
the Lieutenant Governor in Council to designate ldquoany other building place or workrdquo as a
ldquopublic workrdquo However taken to its logical conclusion an entire city or more could be
designated as a ldquopublic workrdquo The definition of ldquopublic workrdquo includes ldquoany provincial
and any municipal public buildingrdquo but ldquopublic buildingrdquo is not further defined thereby
creating an element of uncertainty as to the specific provincial and municipal buildings
captured by this definition While perhaps extreme measures in times of war require
flexibility in all other circumstances legislation of this nature requires limitations and a
more specialized approach
The expression ldquoprivate armyrdquo was used in the Ontario legislative debate in 1939
Theoretically at least private armies could be created through the use of the ldquoguardrdquo
appointing authority by the many individuals who are authorized to appoint guards
pursuant to the PWPA This authority was apparently in response to the Federal
18
Governmentrsquos refusal to assume through the Defence Department the responsibility of
guarding utilities and industries essential to the war effort While such a result might not
have been contemplated in a parliamentary democracy it is clearly unwise to leave such
a possibility open
Section 3 of the PWPA provides in part that a guard or a peace officer
(a) may require any person entering or attempting to enter any public work or any approach thereto to furnish his or her name and addresshellipand to state the purpose for which he or she desires to enter the public work in writing or otherwise
The primary problem I see with this section is the vagueness of the term ldquoapproach
theretordquo An approach could begin at a considerable distance from the public work
Section 6(b) also provides for the making of regulations ldquodefining the areas that
constitute approaches to public works either generally or with regard to a particular
public workrdquo
In addition s 3(b) of the PWPA provides that a guard or peace officer ldquomay search
without warrant any person entering or attempting to enter a public workrdquo This section
does not permit any person to abandon any attempt to enter a public work in order to
avoid being subjected to a warrantless search Such conduct is adopted by persons who
decide not to enter a secured courthouse in order to avoid a warrantless search
Section 4 provides that for the purposes of the PWPA the statement under oath made by
persons engaged in the operation of a public work ldquoas to the boundaries of the public
work is conclusive evidence thereofrdquo Section 4 should be considered with s 5(1) which
provides that ldquoevery person found upon a public work or any approach thereto without
lawful authority the proof whereof lies on him or her is guilty of an offencehellip(emphasis
19
added)rdquo The provision in s 4 that ldquothe statement under oathhellipis conclusive evidence
thereofrdquo appears to remove from a courtrsquos consideration what could be a legitimate
dispute as to the boundaries of a public work or the approach thereto Furthermore the
apparent reversal of the onus of proof regarding lawful authority to be found in a public
work or an approach found in s 5 is also troublesome from a policy and legal point of
view
Accordingly if utilized to the extreme many government officials could appoint many
private armies to restrict access to many (in fact any) public places where the mere
statement under oath by the private guard of the boundaries of the areas under restricted
access is conclusive proof thereof Such potential for abuse is beyond troubling to say
the least
B Review of other Public Reports
As is evident from the foregoing discussion many issues arise regarding the operation of
the PWPA in todayrsquos context These considerations and others also formed the basis of
concerns raised in public reports which I was asked to review
1 Reports of the Canadian Civil Liberties Association
The CCLA preliminary G20 report26 dealt with most of the police related events that
occurred in Toronto during the G20 conference during the weekend of June 26th and 27th
2010 I will only make reference to a few portions of the report that deal with the Terms
of Reference
26 Canadian Civil Liberties Association A Breach of the Peace ndash A Preliminary Report of Observations During the 2010 G20 Summit June 29 2010 online Canadian Civil Liberties Association lthttpcclaorgwordpresswp-contentuploads201006CCLA-Report-A-Breach-of-the-Peace-Preliminary-report-updated-July-8pdfgt
20
The report of the CCLA called for the repeal or significant amendment to the PWPA ldquoto
meet basic constitutional standardsrdquo27 The CCLA ldquosuggests that the broad police powers
granted under the Act are inconsistent with current Charter requirementsrdquo28
I agree with the observation of the CCLA that the provisions of the PWPA led to a ldquolack
of clarity as to the scope of the search and seizure powersrdquo29 which created many
difficulties and conflicts that probably could have been avoided I would also certainly
agree with a conclusory comment in this preliminary report that ldquoit is the duty of police
officers to act with fairness and equanimity toward all citizens in accordance with the law
of the country The presumption of innocence and the protection against arbitrary arrests
and detention are at the core of a commitment to justicerdquo30
The CCLA in partnership with the National Union of Public Employees organized
public hearings for two days in Toronto and one day in Montreal in November of 2010
which they referred to as a Citizens Inquiry The Citizens Inquiry heard from 63 members
of the public who had witnessed policing incidents or had been detained Several lawyers
and academics also participated in the hearing and offered commentary on the events of
the G20 from a legal or policing perspective including issues related to the PWPA A
report of the hearings titled ldquoG20 Toronto Breach of the Peace Public Hearingsrdquo was
released on February 28 2011 which also referred to the PWPA31
27 Ibid p 2228 Ibid p 929 Ibid p 1230 Ibid p 2131 Canadian Civil Liberties Association and the National Union of Public and General Employees G20 Toronto Breach of the Peace Public Hearings February 2011 online Canadian Civil Liberties Association lthttpcclaorgwordpresswp-contentuploads201102Breach-of-the-Peace-Final-Reportpdfgt
21
2 The Ontario Ombudsman Report
The Ontario Ombudsman commenced an investigation after receiving complaints relating
to a variety of issues concerning the G20 The Marin Report recognized that ldquotypically
international summits attract protests and protests can turn violent and even deadlyrdquo32
The report therefore does not quarrel with the requirement that a high level of security is
required for such events
The report in my view accurately describes the PWPA as ldquounique in Canada in terms of
the breadth of its reach and the powers it confershellipno other Canadian statute defining
lsquopublic worksrsquo contains provisions similar to those found in Ontariorsquos Actrdquo33
32 Ontario Ombudsman report Investigation into The Ministry of Community Safety and Correctional Servicesrsquo Conduct in Relation to Ontario Regulation 23310 under the Public Works Protection Act ldquoCaught in the Actrdquo by Andreacute Marin (Toronto Ombudsman of Ontario December 2010) online Ombudsman of Ontario lthttpwwwombudsmanoncamedia157555g20final1-enpdfgt (ldquoMarin Reportrdquo) at para 733 Ibid at para 97
22
SECTION 4 POWERS OF THE POLICE
Pursuant to the Terms of Reference I have been asked to consider for future purposes
whether the powers given to peace officers and guards under the PWPA are necessary to
protect public works secure intergovernmental conferences or for any other purposes
To answer that question it is necessary to assess whether the current common law and
statutory regime provide the police with sufficient powers to perform these vital services
A Common Law Powers and Powers Pursuant to Police Services Acts
The police have extensive common law powers that can be used in protecting and
securing intergovernmental conferences and in protecting public works It is necessary to
examine those powers in order to assess whether and what if any additional powers are
needed such as those provided by the PWPA
Of particular assistance in this regard is R v Knowlton34 where the Supreme Court of
Canada considered whether the powers possessed by peace officers at common law and
statute in securing an area for the protection of a foreign dignitary were lawful The
Supreme Court of Canada held that in order for the exercise of peace officer powers to be
lawful the powers must satisfy the two step test set out in R v Waterfield35 First the
power must be in furtherance of a lawful duty Traditional common law peace officer
duties include the preservation of the peace and the prevention of crime These common
law police duties amongst others are now statutorily enshrined in s 42(1) of Ontariorsquos
Police Services Act (and other provincial police services acts)36 The second part of the
test requires an evaluation of whether the conduct of the peace officer was ldquojustifiedrdquo To
34 [1974] SCR 443 [ldquoKnowltonrdquo]35 See for example R v Dedman [1985] 2 SCR 236 RSO 1990 c P15
23
do so one applies the standard of what is reasonably necessary in light of the totality of
the circumstances In evaluating whether the conduct of the peace officer was justified it
is important to consider ldquothe duty being performed the extent to which some interference
with individual liberty is necessary in the performance of that duty the importance of the
performance of the duty to the public good the nature of the liberty being interfered with
and the nature and extent of the interferencerdquo37
In Knowlton police in Edmonton cordoned off an area as part of the security
arrangements for the visit of Premier Kosygin of the USSR Premier Kosygin had been
assaulted in Ottawa a few days prior to his visit to Edmonton Knowlton entered the
secured area questioning the power of the peace officer to prevent his entry He was
arrested without a warrant and charged with obstructing a peace officer in the execution
of his duties Knowlton argued that the peace officer did not have the power to prevent
his entry and was not acting in the execution of his duty
The Supreme Court of Canada emphasized the heightened importance of security when
there are visiting foreign dignitaries38
It is notorious and of common knowledge that the official visit of the head of state or high rank dignitary of a foreign country friendly as either may be is an event that frequently engenders a real or apprehended threat to the preservation of peace and that calls therefore for the adoption of proper and reasonable security measures in and by the host countryhellipThe restriction of the right of free access of the public to public streetshellipwas one of the steps--not an unusual one--which police authorities considered and adopted as necessary for the attainment of the purpose aforesaid In my opinion such conduct of the police was clearly falling within the general scope of the duties imposed upon them
37 R v Mann [2004] 3 SCR 59 at 7938 Supra note 34 at 447-448
24
In addressing the first part of the Waterfield test the Court referenced provisions of the
Alberta Police Act and the Criminal Code and concluded that the conduct of the peace
officers fell within the general scope of the duties imposed upon them for example
preservation of the peace and prevention of crime39
According to the principles which for the preservation of peace and prevention of crime underlie the provisions of s 30 amongst others of the Criminal Code these official authorities were not only entitled but in duty bound as peace officers to prevent a renewal of a like criminal assault on the person of Premier Kosygin during his official visit in Canada In this respect they had a specific and binding obligation to take proper and reasonable steps The restriction of the right of free access of the public to public streets at the strategic point mentioned above was one of the steps--not an unusual one--which police authorities considered and adopted as necessary for the attainment of the purpose aforesaid In my opinion such conduct of the police was clearly falling within the general scope of the duties imposed upon them
In analyzing the second step of the Waterfield test the Court concluded that there was no
evidence indicating the police officers resorted to an unjustifiable use of the powers
associated with the duties imposed on them
The Court in Knowlton recognized broad police powers to cordon off areas as part of the
security arrangements involving internationally protected persons In addition the Court
found that the warrantless arrest in that case was not an unjustifiable or unreasonable use
of powers associated with the police duties to preserve the peace order public safety and
to enforce the law and prevent crime Finally the Court found that peace officers were
duty bound ldquoto prevent a renewal of a like criminal assault on the person of Premier
Kosygin during his official visit in Canadardquo40 Furthermore it stated the closing of public
39 Ibid 40 Ibid at 447
25
streets ldquowas one of the steps -- not an unusual one -- which police authorities considered
and adopted as necessaryrdquo41
The Knowlton decision clearly acknowledged that the police had the duty and authority to
establish and enforce a secured area to protect a foreign dignitary In order to carry out
these duties the police may do what is reasonably necessary in light of the totality of the
circumstances
Though Knowlton was decided prior to the enactment of the Canadian Charter of Rights
and Freedoms (the ldquoCharterrdquo) this does not in my view affect the clear statement by the
Supreme Court of Canada regarding the duty of the police under the common law and the
Alberta Police Act to provide this security While the facts of Knowlton were quite
compelling in relation to the obvious need to provide adequate security for Premier
Kosygin the decision is equally important authority regarding the general responsibilities
of the police at common law and statute in relation to the preservation of the peace
B Other Statutory Powers
1 Criminal Code
Some specific powers are provided to peace officers pursuant to the Criminal Code42
Section 31 gives peace officers the power to arrest an individual for breach of the peace
Peace officers can arrest those committing the breach of the peace or those who on
reasonable grounds heshe believe are about to join in or renew the breach of the peace
Peace officers also have powers at their disposal under ss 63-69 of the Criminal Code to
deal with the offences of unlawful assembly and riots
41 Ibid at 447-448 42 RSC 1985 c C-46
26
2 Trespass to Property Act
The Ontario Trespass to Property Act43 is a potential source of police power to arrest
without warrant those who are unlawfully on certain premises or who were recently
unlawfully on the premises and refuse to give their name and address44 This statute
deals with illegal entry into both private and public property by creating the offence of
trespass for those who without the express permission of the occupier enter on to
premises or engage in an activity on the premises when it is prohibited by the statute45
Though this statute is primarily used by private property owners to keep unwanted people
off of their property it has also been invoked by the Speaker of the House46 and by the
City of Toronto47 It must be noted however that using the Trespass to Property Act in
relation to removing individuals from ldquopublicrdquo places may raise Charter issues48
3 Foreign Missions and International Organizations Act
The RCMP as peace officers have the general duty to preserve the peace and prevent
crime and offences as set out in s 18 of the Royal Canadian Mounted Police Act49
Additional duties found in s 17 of the Royal Canadian Mounted Police Regulations
198850 include the protection of ldquointernationally protected personsrdquo as defined in s 2 of
the Criminal Code Internationally protected persons include heads of state and their
43 RSO 1990 c T2144 Ibid ss 9(1) 1045 Ibid s 2(1)46R v Behrens [2004] OJ No 5135 (CJ) The Court held that the issue of the trespass notices fell under the Speakerrsquos parliamentary privilege and were not reviewable even on the basis of a Charter argument47R v Semple [2004] OJ No 2137 (CJ)48 In R v Semple the defendants were charged under the Ontario Trespass to Property Act for entering the grounds of Toronto City Hall after being banned from doing so In the end the Court held that the defendantsrsquo peaceful entry onto the grounds was an expression as per s 2(b) of the Charter Torontorsquos notice under the Act infringed on this freedom and in these circumstances it could not be justified under s 1 of the Charter 49 RSC 1985 c R-1050 SOR88-361
27
family members The RCMPrsquos duty to protect internationally protected persons is also
found in s 6(1) of the Security Offences Act51
In addition Canada is a signatory of the United Nations Convention on the Prevention
and Punishment of Crimes against Internationally Protected Persons including
Diplomatic Agents52 This Convention provides that the Government of Canada must
protect visiting heads of state or government foreign ministers representatives or
officials of a state or any official or other agent of an international organization of an
intergovernmental character and the family members that accompany him or her The
RCMP has the responsibility to carry out these security measures
Pursuant to s 101(1) of the FMIOA ldquoThe Royal Canadian Mounted Police has the
primary responsibility to ensure the security for the proper functioning of any
intergovernmental conference in which two or more states participate that is attended by
persons granted privileges and immunities under this Act and to which an order made or
continued under this Act appliesrdquo
The powers to carry out this mandate are found in s 101(2) of the FMIOA ldquothe Royal
Canadian Mounted Police may take appropriate measures including controlling limiting
or prohibiting access to any area to the extent and in a manner that is reasonable in the
circumstancesrdquo It is noteworthy that the FMIOA has legislated the same powers
provided to the police under common law and statute
In order to trigger the RCMP powers described in s 101 the Governor in Council on the
51 RSC 1985 c S-752 UNGA Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons including Diplomatic Agents 20 February 1977 UN Doc I-15410
28
recommendation of the Minister of Foreign Affairs and pursuant to s 5 of the FMIOA
made the G8 Summit Privileges and Immunities Order 201053 on December 10 2009
This order was repealed and a subsequent order54 was made on January 13 2010 A
similar order55 for the G20 Summit was made on March 11 201056
Therefore during the G20 the RCMP had the specific statutory power to limit or
prohibit access to any area and to any extent as long as the measures were appropriate
and done in a manner that was reasonable in the circumstances ldquoThe RCMP may secure
the perimeter of the security zone on land with fencing and restrict access to this zone
through the use of checkpoints and other measuresrdquo57
Though not invoked during the G20 s 101(4) of the FMIOA provides that arrangements
can be entered into with a province concerning the responsibilities of members of the
RCMP and members of the provincial and municipal police forces with respect to
ensuring the security for the proper functioning of an intergovernmental conference No
information was provided to me as to why such an arrangement was not entered into for
the G20
These intergovernmental security provisions of the FMIOA were enacted just prior to the
G8 being held in Kananaskis Alberta in 2002 In light of violent protests at international
events and the 911 terrorist attacks in the United States the Federal Government
53 SOR2009-33654 SOR2010-1355 SOR2010-6256 Supra note 17 ldquoUpon such an Order being made the RCMP in co-operation and collaboration with other police forces becomes impressed with the primary responsibility of ensuring not only the protection of the IPPs but also ensuring lsquosecurity for the proper functioningrsquo of the intergovernmental conference To that end the FMIOA provides that the lsquoappropriate measures including controlling limiting or prohibiting access to any area to the extent and in a manner that is reasonable in the circumstancesrsquo may be takenrdquo57 Ibid
29
considered it timely ldquoto clarify in statute the present common law authority for police to
provide security and protection for high profile international eventsrdquo58 At such events it
was intended that ldquothe RCMP is the lead to make sure that security is providedrdquo59
Given that it was clearly the intention of the Federal Government to have the RCMP as
the lead police force at these international events consideration should be given to
expand the use of the FMIOA to cover all large scale international events such as the
Olympics the Pan American Games and international trade fairs as these events are
routinely attended by heads of state and senior government officials Most recently
Vancouver held the 2010 Olympic and Paralympic Winter Games60 Though federal and
municipal legislation were passed to assist in securing the Games expansion and
application of the FMIOA would have been a better approach The RCMP as the national
police force ought to be in charge pursuant to their authority under the FMIOA
4 Emergency Legislation
Through my consultations with the parties listed in Appendix 2 I heard that while we are
not in a time of war as in 1939 when the PWPA was enacted we live in an age of
international and local terrorism threats Our democratic society must be vigilant in
58 Canada House of Commons Debates 37th Parl 1st Sess No 93 (5 October 2001) at 100059 Canada House of Commons Standing Committee on Public Safety and National Security 40th Parl 3rd
Sess Evidence (25 October 2010)60 In anticipation of this event the Governor General in Council on the recommendation of the Minister of Transport pursuant to the Aeronautics Act (RSC 1985 c A-2) and the Canadian Air Transport Security Authority Act (SC 2002 c 9 s 2) passed the Vancouver 2010 Aviation Security Regulations (SOR2009-298) The purpose of the regulations was to enhance aviation security during the Games The Regulation provided for extra security and extra authorized means to conduct screenings In addition the Vancouver City Council passed the very lengthy By-law No 9962 known as the ldquoVancouver 2010 Olympic and Paralympic Winter Games By-Lawrdquo Specific security measures to be employed at a city live site (described thoroughly in a Schedule to the By-Law) that were enabled by this By-Law included The installation and monitoring of airport style and other security measures including magnetometers and X-ray machines the installation and monitoring of closed circuit television cameras the searching of any person who wished to enter on to a city live site and any bag luggage or other container carried by such person and the prohibiting of access to or removal from a city live site any person who refused to submit to a search
30
maintaining a proper level of security while recognizing that democratic values and
security issues can conflict where public order is at issue It is important to highlight that
provincial legislation exists dealing with both terrorism threats and emergency situations
I have been informed that federal and provincial counter-terrorism plans exist that
address preventing and responding to acts of terrorism
The Police Services Act regulations mandate police forces to establish procedures
consistent with federal and provincial counter-terrorism plans61 and to have policies with
respect to counter-terrorism62 In addition the Emergency Management and Civil
Protection Act allows for orders to be made in situations specifically designated an
ldquoemergencyrdquo63 by the Lieutenant Governor in Council or the Premier that regulate or
prohibit travel and movement to from or within any specified area64 Therefore the
PWPA is not needed to deal with these emergency situations as specific more recent
emergency legislation is in place for that very purpose
C Gaps in Canadian Police Powers
The Ministry of Community Safety and Correctional Services provided me with an
interesting article published in 2010 entitled ldquoThe Gap in Canadian Police Powers
61 Adequacy and Effectiveness of Police Services O Reg 399 s 2862 Ibid s 2963 Section 1 of the Emergency Management and Civil Protection Act defines an ldquoemergencyrdquo as ldquoemergencyrdquo means a situation or an impending situation that constitutes a danger of major proportions that could result in serious harm to persons or substantial damage to property and that is caused by the forces of nature a disease or other health risk an accident or an act whether intentional or otherwise (ldquosituation drsquourgencerdquo)64 RSO 1990 c E9 s 702(4)
31
Canada needs lsquoPublic Order Policingrsquo Legislationrdquo and co-authored by Wesley Pue and
Robert Diab65
This article was prompted by the debate over the cost nature and extent of security to be
employed at the Vancouver 2010 Winter Olympics The authors criticized the fact that
policing authorities in Canada ldquolack specific statutory authorization to take measures
commonly thought necessary to their missionrdquo66 These measures included security
fences in public areas designated protest areas restricted access to public space police
surveillance and searches without cause
The authors recognize that such powers may be necessary but note that ldquono legislature
has ever expressly conferred such powers on policing authorities outside the context of
international intergovernmental conferences Nor does the common law accord such
powers to state officials on its ownrdquo67 I respectfully disagree with this latter statement
It is my view the police have powers pursuant to the common law and statute as I have
discussed in the preceding section
The authors referred to R v Knowlton68 which I have previously discussed While the
authors give Knowlton a very narrow interpretation stating that ldquoits binding principle is a
good deal narrower than the words taken out of context might suggestrdquo69 I however am
of the view that the decision supports the proposition that police have a broad range of
65 Wesley Pue and Robert Diab ldquoThe Gap In Canadian Police Powers Canada Needs lsquoPublic Order Policingrsquo Legislationrdquo (2010) 28 Windsor Rev Legal Soc Issues 87 Wesley Pue is a professor of legal history at the University of British Columbia and Robert Diab is a PhD candidate at the UBC Faculty of Law66 Ibid p 8867 Ibid68 Supra note 3469 Supra note 65 p 92
32
responsibilities with deep historical roots in the common law and codified in statute a
position shared by the Federal Government when it introduced amendments to the
FMIOA The actions of the police in Knowlton were necessarily incidental to their
common law police duties and powers
The authors conclude that this ldquoauthority of police to create zones of exclusion either as
an incident of the general and ancient duties of constableshelliphas never been established in
the courtsrdquo70 I am of the view however that the role of the police in establishing
security zones relating to a crime a serious accident or other emergency is a routine and
well-accepted use of police powers pursuant to their common law and statutory duties I
am not suggesting that this common law authority permits the police to establish security
zones ldquofor the proper functioning of any intergovernmental conference in which two or
more states participaterdquo71 larger than necessary to fulfill their purpose The FMIOA as
amended in 2002 provides the RCMP with ldquoprimary responsibility to ensure the security
for the proper functioning of the intergovernmental conferencerdquo72 It is interesting
however that when the Federal Government was enacting this specific authority the
legislative debates indicated that the government was merely clarifying ldquoin statute the
present common law authority for police to provide security and protection for high
profile international eventsrdquo73
Security perimeters are routinely erected by police in the context of the commission of a
crime motor vehicle and other accidents as well as the Santa Claus parade and other
70 Ibid p 9671 Supra note 8 s 101(1)72 Ibid73 Supra note 58
33
parades It would in my view be quite impractical and unnecessary to legislate an
extensive code of police powers given their common law and statutory responsibilities to
generally maintain public order It is not advisable in my opinion to be prescriptive in
any way regarding what actions the police can take since they must assess what the
situation warrants while at the same time considering individual rights and freedoms
The details of any police response to an emergency must be tailored to the exigencies
related to the situation
The police clearly have common law and statutory authority to conduct warrantless
searches in specific situations (ldquoin exigent circumstancesrdquo)74 However when
warrantless searches must be carried out on a regular routine basis the police are acting
more like full time security guards and there should be specific statutory authority
provided to give such powers
I certainly accept the general proposition the authors assert that the mobility rights of
citizens should not be unreasonably or unfairly dealt with However one only need be
aware of the massive amount of construction taking place on the streets of Toronto as this
Report is being written to appreciate that it is not always reasonable to expect that ldquothe
rights of businesses homeowners and ordinary citizens to go about their routine
activities without interruptionrdquo75 will go unhindered While generally desirable it cannot
be legally guaranteed At the same time the authors do concede that ldquoimportant as they
74 Supra note 42 s 4871175 Supra note 65 p 89
34
are the rights of assembly movement and protest are not unqualified They can ndash and
should ndash be balanced against other important public needsrdquo76
In my view public policing at times requires innovation as it often benefits from
creative problem solving If police abuse their common law powers related to ldquopublic
order policingrdquo they are accountable to a multiplicity of authorities and the rule of law
most particularly the Charter The legal rights outlined in the Charter such as ldquothe
principles of fundamental justicerdquo77 security ldquoagainst unreasonable search and seizurerdquo78
and ldquothe right not to be arbitrarily detained or imprisonedrdquo79 are described very
generally However they were chosen deliberately as it was recognized that in each case
there is an inherent tension between imposing security measures and fundamental rights
and freedoms Determining which is paramount will be based on the facts of each case
76 Ibid p 9177 Canadian Charter of Rights and Freedoms s 7 Part I of the Constitution Act 1982 being Schedule B to the Canada Act 1982 (UK) 1982 c 1178 Ibid s 879 Ibid s 9
35
SECTION 5 LEGAL ANALYSIS OF THE PUBLIC WORKS PROTECTION ACT
A Legal Analysis of the Legislation
Many stakeholders have questioned the constitutional validity of the PWPA and O Reg
23310 The Ontario Ombudsman seriously questioned whether O Reg 23310 could
pass ldquoconstitutional musterrdquo80 The CCLA suggested that the broad police powers
granted under the PWPA were inconsistent with the Charter81
To the same effect were comments made by Premier Dalton McGuinty who described
the PWPA as ldquoan archaic law that was used to undermine Torontoniansrsquo civil rights
during the G20rdquo82 He elaborated83
The issue is whether itrsquos appropriate given our present-day values and given an old law which I am confident doesnrsquot strike the balance that you and I would want today in terms of public safety and individual freedom of expressionhellipWhen you start talking about civil rights individual freedoms yoursquore talking about those things that in fact define us as a free and democratic societyhellipItrsquos something that is real and meaningful and important to all of us
The Terms of Reference for this Review do not require that I conduct a constitutional
analysis of the PWPA I have however been asked to consider areas for reform and if
appropriate make specific recommendations for amendment or repeal This does require
that I therefore consider whether the legislation may be vulnerable to constitutional
challenge
Section 2(b) of the Charter guarantees everyone the fundamental freedom of expression
The definition of ldquoexpressionrdquo has been interpreted broadly ldquoActivity is expressive if it
80 Supra note 32 at para 23381 Supra note 26 p 982 Robert Benzie and Rob Ferguson ldquoMcGuinty shifts focus to fixing G20 lawrdquo Toronto Star (10 December 2010) online thestarcom lthttpwwwthestarcomnewscanadaarticle905436--mcguinty-shifts-focus-to-fixing-g20-lawgt 83 Ibid
36
attempts to convey meaningrdquo84 While freedom of expression is not absolute there is
very little that is not considered expression However expression that advocates violence
is not protected under s 2(b)85
The Supreme Court of Canada in Committee for the Commonwealth of Canada v
Canada held that s 2(b) ldquodoes not encompass the right to use any and all government
property for purposes of disseminating onersquos views on public matters but I have no doubt
that it does include the right to use for that purpose streets and parks which are dedicated
to the use of the public subject no doubt to reasonable regulation to ensure their
continued use for the purposes to which they are dedicatedrdquo86 It seems clear that
protesting in public streets is a form of expression protected by s 2(b) Protesting at an
intergovernmental conference is clearly expressive in nature
In challenges alleging that a statute contravenes s 2(b) of the Charter a court would
examine whether the purpose or effect of a law contravenes section 2(b)87 There is no
reason to suggest that the purpose of the PWPA was to infringe the freedom of
expression The purpose of the PWPA is to protect important public infrastructures A
court would then have to consider whether the effect of the PWPA may have resulted in
an infringement of freedom of expression
O Reg 23310 defined significant portions of downtown Toronto as a ldquopublic workrdquo
Section 3(c) of the PWPA allows peace officers to refuse entry into public works which
therefore limits the areas in which protesters could express themselves By creating the
84 Irwin Toy Ltd v Queacutebec (Attorney General) [1989] 1 SCR 927 at 96885 Ibid at 97086 [1991] 1 SCR 139 at 165-16687 Peter Hogg Constitutional Law of Canada loose-leaf (consulted on 7 January 2011) 5th ed (Toronto Thomson Reuters Canada Limited 2007) at 43-6
37
relatively large security perimeter designated by the regulation individuals may allege
they were not permitted to communicate directly with those they were protesting against
Furthermore individuals could not communicate in public places such as public streets
where the right to freedom of expression has previously been found to exist88
Commissioner Ted Hughes completed an interim report following a public hearing into
the complaints regarding events that took place with respect to the Asia Pacific Economic
Cooperation (APEC) Conference in Vancouver British Columbia in November 1997
Commissioner Hughes recommended that generous opportunity should be afforded to
peaceful protesters to be seen in their protest activities by guests at the event89
Section 7 of the Charter provides that ldquoEveryone has the right to life liberty and security
of the person and the right not to be deprived thereof except in accordance with the
principles of fundamental justicerdquo The PWPA raises issues regarding the liberty and
security of the person in providing for warrantless searches and stopping for
identification Furthermore vague laws offend two fundamental values of our legal
system90 Firstly individuals are not provided with sufficient guidance as to what
behaviour a law prohibits Secondly those in charge of enforcing the law are not
provided with clear guidance as to how to enforce it A vague law can lead to inconsistent
and arbitrary enforcement91
88 Supra note 86 89 Canada Commission for Public Complaints Against the RCMP APEC ndash Commission Interim Report (31 July 2001) at s 3111 (Commissioner Ted Hughes QC) online Commission for Public Complaints Against the RCMP lthttpwwwcpc-cppgccaprrrepphrapecapec-31-engaspxgt90 Supra note 87 at 47-60 91 ldquoA vague provision does not provide an adequate basis for legal debate that is for reaching a conclusion as to its meaning by reasoned analysis applying legal criteria It does not sufficiently delineate any area of risk and thus can provide neither fair notice to the citizen nor a limitation of enforcement discretion Such
38
As described by Professor Hogg92
The requirement that any limit on rights be prescribed by law reflects two values that are basic to constitutionalism or the rule of law First in order to preclude arbitrary and discriminatory action by government officials all official action in derogation of rights must be authorized by law Secondly citizens must have reasonable opportunity to know what is prohibited so that they can act accordingly Both these values are satisfied by a law that fulfils two requirements (1) the law must be adequately accessible to the public and (2) the law must be formulated with sufficient precision to enable people to regulate their conduct by it and to provide guidance to those who apply the law
As I stated earlier the phrase ldquoany approach theretordquo contained in s 3(a) of the PWPA is
potentially vague No criteria are provided to assist in determining when one is on ldquoany
approach theretordquo A phrase such as ldquoany approach theretordquo is subject to many potential
interpretations It is arguable that this language does not provide reasonable guidance for
individuals to obey the law and for the law to be consistently enforced
Section 8 of the Charter provides that ldquoEveryone has the right to be secure against
unreasonable search or seizurerdquo A warrantless search or seizure is only reasonable if the
search was authorized by law the law itself is reasonable and the manner in which the
search carried out was reasonable93 The fact that no reasonable or probable suspicions
are needed to carry out a search pursuant to s 3(b) of the PWPA raises some issues The
only prerequisite to such a search is that the person or vehicle being subjected to a search
is entering or attempting to enter a public work
a provision is not intelligible to use the terminology of previous decisions of this Court and therefore it fails to give sufficient indications that could fuel a legal debaterdquo (R v Nova Scotia Pharmaceutical Society [1992] 2 SCR 606 at 639-640) 92 Supra note 87 at 38-1293 R v Nolet [2010] SCJ No 24 at para 21
39
Whether the PWPArsquos s 3(b) authority to undertake warrantless searches is ldquoreasonablerdquo
depends on the reasonableness of the impact on the subject of the search ldquoThe
individuals reasonable expectation of privacy must of course be balanced against the
public interest in effective law enforcementrdquo94 It is harder to justify a warrantless search
where the reasonable expectation of privacy is higher For example interference with
bodily integrity will raise the standard of reasonableness Conversely in situations where
people expect to have a lower level of privacy the standard to prove reasonableness is
lower
One rightfully has some expectation of privacy when in public but it does not rise to the
level of privacy that one expects in onersquos home The expectation of privacy further
decreases when one attempts to enter a ldquopublic workrdquo especially in the context of a
secured barrier to an intergovernmental conference
Section 9 of the Charter provides that ldquoEveryone has the right not to be arbitrarily
detained or imprisonedrdquo95 Under s 3(a) of the PWPA a person entering or attempting to
enter or approach a public work must provide his or her name and address and state the
purpose for which he or she desires to enter the public work In order for a guard or
peace officer to carry out this duty the guard or peace officer may ldquostoprdquo the person from
further approaching or entering the public work and the person is not permitted under the
statute to decide not to enter By so doing it is arguable the guard or peace officer has
assumed control over the movement of the individual by a demand or direction The
94 R v Rao [1984] OJ No 3180 at para 79 (CA)95 ldquoDetention under s 9hellipof the Charter refers to a suspension of the individualrsquos liberty interest by a significant physical or psychological restraint Psychological detention is established either where the individual has a legal obligation to comply with the restrictive request or demand or a reasonable person would conclude by reason of the state conduct that he or she had no choice but to complyrdquo (R v Grant [2009] SCJ No 32 at para 44)
40
PWPA provides for a significant legal consequence if the demand or direction is not
followed since ldquoEvery person who neglects or refuses to comply with a request or
direction made under this Act by a guard or peace officer and every person found upon a
public work or any approach thereto without lawful authority the proof whereof lies on
him or her is guilty of an offence and on conviction is liable to a fine of not more than
$500 or to imprisonment for a term of not more than two months or to bothrdquo96
Pursuant to s 3(b) of the PWPA a guard or peace officer may search any person entering
or attempting to enter a public work These searches would necessitate the detention of a
person If a guard or peace officer performs such a search he or she has taken control
over the movement of the person by a demand or direction The same serious legal
consequence results from failing to obey this demand or direction as that which results
from failing to obey the demand or direction pursuant to s 3(a) of the PWPA As a
result ldquodetentionsrdquo could occur pursuant to both s 3(a) and s 3(b) of the PWPA
The question that would need to be addressed in any challenge to the PWPA is whether
the detentions permitted by the PWPA are arbitrary in nature The use of the term ldquoany
approach theretordquo is vague and imprecise A person could be deemed to be on ldquoany
approach theretordquo a great distance from the entrance of a public work and their detention
might very well be arbitrary In addition the fact that the guards and peace officers
determine the boundaries of the ldquoapproachesrdquo which cannot be contested seems
arbitrary as well as who they chose to search
96 It should be noted that not all communications with state authorities and police officers will amount to a detention The question is whether a person may reasonably believe that he or she is free to refuse to comply
41
Section 11(d) of the Charter provides that ldquoAny person charged with an offence has the
right to be presumed innocent until proven guilty according to law in a fair and public
hearing by an independent and impartial tribunalrdquo This requires that the Crown have the
burden of proving the guilt of an individual charged with an offence97 Provisions that
place the burden on the accused to disprove on the balance of probabilities an essential
element of an offence raises s 11(d) concerns because convictions would be possible
even if reasonable doubt existed98 The presumption of innocence is not only infringed
upon by a requirement that an accused disprove an essential element of an offence but
also any requirement on an accused to prove a fact on the balance of probabilities to
avoid conviction
Section 5(1) of the PWPA states that ldquoEvery person who neglects or refuses to comply
with a request or direction made under this Act by a guard or peace officer and every
person found upon a public work or any approach thereto without lawful authority the
proof whereof lies on him or her is guilty of an offence and on conviction is liable to a
fine of not more than $500 or to imprisonment for a term of not more than two months or
to bothrdquo For the offence of being found upon a public work or on any approach to a
public work without lawful authority the burden of proof has been ldquoshiftedrdquo from the
Crown to the accused to prove lawful authority
As the foregoing analysis reveals there are certainly many concerns that arise when one
places the PWPA under the lens of the Charter However the rights and freedoms
provided by the Charter are not absolute They are ldquosubject only to such reasonable
97 R v Oakes [1986] 1 SCR 10398 Ibid at 132
42
limits prescribed by law as can be demonstrably justified in a free and democratic
societyrdquo99
In assessing whether a law which infringes the Charter is saved by s 1 a court examines
both the object of the law and the measures taken to achieve that objective A lawrsquos
objective achieves the status of being sufficiently important to justify overriding a
Charter right only when it is consistent with the values of a free and democratic society
The objective must relate to pressing and substantial concerns and not concerns that are
trivial and must be focussed on ldquothe realization of collective goals of fundamental
importancerdquo100 The measures adopted must be ldquorationally connectedrdquo to the objective of
the law101 The measures ldquoshould impair lsquoas little as possiblersquo the right or freedom in
questionrdquo102 Furthermore there must be ldquoa proportionality between the effects of the
measures which are responsible for limiting the Charter right or freedom and the
objective which has been identified as of lsquosufficient importancersquordquo103
An issue that may affect whether the potential limitation on rights and freedoms of the
PWPA and O Reg 23310 were ldquoprescribed by lawrdquo is whether the regulation was
adequately accessible to the public The Ontario Ombudsman the CCLA and the Ontario
Bar Association (ldquoOBArdquo) all noted a lack of notice regarding O Reg 23310 and its
effects prior to and during the G20 While the text of the regulation was available prior
99 Charter s 1 The Superior Court of Quebec decision of Tremblay v Queacutebec (Attorney General) [2001] JQ No 1504 (CS) involved an interim injunction brought by an applicant who was denied entry into the secured perimeter during the 2001 Summit of the Americas in Queacutebec City The applicant sought an injunction to either eliminate the security barrier or to be given a pass to let him within the secured perimeter Even though the Court held that the erection of the security zone violated the applicantrsquos right to freedom of expression and peaceful assembly The court held that the infringement was ldquodemonstrably justified in a free and democratic societyrdquo100 Supra note 97 at 136101 Ibid at 139102 Ibid103 Ibid
43
to the G20 it was only available on a website not frequently accessed by the public
Since O Reg 23310 was not published in The Ontario Gazette until after it was
revoked it may be that the regulation was not adequately accessible to the public
Reverse onus offences have been found to be ldquorationally connectedrdquo when there is plainly
a rational connection between the proven fact and the fact to be presumed Reverse
onuses have also been upheld when the burden placed on the Crown would be virtually
impossible to meet (such as proving sanity)104 Even if the accused only has the burden
of disproving the fact that heshe did not have lawful authority to be in a public work or
on an approach thereto there may not be a rational connection between the proven fact
and the fact to be presumed
The history of threats and violence at previous intergovernmental conferences
demonstrated that the protection of G20 participants was a pressing and substantial
concern However given the broadness of the PWPA every exercise of it raises the
potential for Charter scrutiny
Recommendation
Given the public policy considerations I have raised regarding the PWPA and Charter
concerns that could arise I recommend that the PWPA be repealed after the Province has
considered potential policy and security gaps as a result of its repeal
B Other uses of the Public Works Protection Act
It appears from my consultations with stakeholder groups that if the PWPA is repealed
104 R v Chaulk [1990] 3 SCR 1303 at 1340
44
there are two areas which may require legislation to provide specific peace officer
powers These two areas are court security and the protection of nuclear power facilities
and other power generating infrastructures
1 Court Security
During my decade as Ontariorsquos Attorney General (1975 to 1985) there were three
murders in provincial courthouses as well as many threats to members of courthouse staff
and others As violent acts in courthouses can be anticipated courtroom security is often
required
Individuals are compelled to go to court for a variety of reasons such as appearing as an
accused as a witness or for jury duty To provide protection to those who work there or
are compelled to attend an adequate level of court security may require a search without
warrant of each and every individual who seeks to enter a courthouse It is not reasonable
to require prior judicial authorization for each search that takes place
The courts have considered the constitutionality of these provisions of the PWPA in
conjunction with section 137 of the Ontario Police Services Act in the context of court
security
Section 137 of the Ontario Police Services Act imposes a responsibility on municipal
police services boards to secure the premises where court proceedings are conducted and
includes
1 Ensuring the security of judges and of persons taking part in or attending proceedings
45
2 During the hours when judges and members of the public are normally present ensuring the security of the premises
3 Ensuring the secure custody of persons in custody who are on or about the premises including persons taken into custody at proceedings
4 Determining appropriate levels of security for the purposes of paragraphs 1 2 and 3
In R v Campanella105 Ms Campanella was attending the John Sopinka Courthouse in
Hamilton At the courthouse there were signs posted stating that those who entered
would be searched for weapons When Ms Campanellarsquos bag was searched marijuana
was found and she was charged with the possession of marijuana She argued that her s
8 Charter protection against unreasonable search and seizure had been violated and the
marijuana discovered during the search should therefore be excluded as evidence The
trial judge and the summary convictions appeal court rejected the section 8 Charter
argument and the appellant appealed to the Ontario Court of Appeal
The Ontario Court of Appeal agreed that ldquogiven the importance of the government
objective and the context in which these searches take place it is reasonable to authorize
warrantless searches of those entering courthouse facilitiesrdquo106 The Court stated ldquothe
only effective way to diminish the risk in a large courthouse is to subject everyone
without prior security clearance to some kind of inspection I can see no other feasible
means of achieving the aimrdquo107
The Court also pointed out the concern relating to the erosion of the benefits and
105 [2002] OJ No 5104 (SCJ) affrsquod [2005] OJ No 1345 (CA) [ldquoCampanellardquo]106 R v Campanella [2005] OJ No 1345 at para 17 (CA)107 Ibid at para 19
46
protections conferred by s 8 of the Charter108
I am sensitive to the concern that we should not erode the benefits and protections of s 8 by gradually sanctioning ever-greater intrusions into privacy because of unfounded fears We should not lightly accept that searches in public places are justified solely because people have become used to them and expect them However the record in this case establishes the justification for the kinds of searches carried out in this case
Ultimately the appeal was dismissed and s 137 of the Police Services Act and s 3(b) of
the PWPA) were held to comply with s 8 of the Charter109
In its consultations with me the OBA similarly stated that the existing nature of court
security is necessary and is generally ldquowell toleratedrdquo At the same time however it
submits that the security regime should not be ldquoshoehornedrdquo into the PWPA regime and
that it would be preferable to provide a legislative framework tailored for the specific
security requirements While the PWPA has been relied upon as support for the exercise
of powers by the police in providing court security the OBA submits that the PWPArsquos
ldquosingle security schemerdquo which declares something a ldquopublic workrdquo is an ldquoawkward
blunt instrument in a world where more specialized tools are necessaryrdquo When
warrantless searches are being done on a routine basis it is advisable to have specific
legislation providing peace officers with such power
Recommendation
Court security legislation is currently in place in many jurisdictions across Canada and
contain provisions that permit warrantless searches of persons wanting to access a
108 Ibid at para 25109 The Court in R v SS [2005] OJ No 5002 (SCJ) agreed with the findings and rationale of the Court of Appeal in Campanella
47
courthouse The constitutional validity of such legislation in Manitoba was upheld by that
provincersquos highest court110
Given the ongoing need for warrantless searches at courthouses the Province of Ontario
should consider specific court security legislation in Ontario to support the security
measures in our courthouses if the PWPA is to be repealed taking into consideration the
responsibilities of the municipal police services boards provided in s 137 of the Police
Services Act This legislation should only be passed after proper notice consultation and
legislative debate
2 Power Generating Infrastructures
It is clear from the submissions that I received from representatives of OPG and the
Canadian Nuclear Safety Commission (ldquoCNSCrdquo) that the PWPA currently plays a role in
providing security officers with the powers to secure power generating infrastructures
including the ability to carry firearms and the ability to stop and require identification
from those in proximity to those nuclear plants
Security is of the utmost importance in protecting a nuclear power plant Members of the
public do not need to access a nuclear or similar power facility unless employed at the
facility or carrying out work for the facility111
The security of areas within nuclear power plants is governed by the Nuclear Security
110 R v Lindsay [2004] MJ No 380 (CA) 111 Though the discussion focuses on nuclear power plants I have been informed that other power generating infrastructures use the PWPA to designate their security officers as guards As a result if the PWPA is repealed it will be necessary to broaden the consultations in relation to these other power generating infrastructures
48
Regulations112 Every nuclear power plant must be located within a ldquoprotected areardquo113
This protected area is the area within a fenced perimeter which is alarmed and
continually patrolled This area must be equipped with devices that employ two
independent systems to detect intrusion into the area114 The Nuclear Security
Regulations also provide detailed specifications for the barrier which must enclose the
protected area115 In addition licensees must ldquoidentify all vital areas and implement
physical protection measures ndash including access control and measures designed to delay
unauthorized accessrdquo116
The Nuclear Security Regulations also provide detailed provisions regarding entry into
protected areas No person can ldquoenter a protected area without physical proof of the
recorded authorization of the licenseerdquo117 Further to this on entry into a protected area
ldquothat personrsquos identity shall be verified by two separate personnel identity verification
systems one of which is an access card reader and the other of which is a biometric
personnel identity verification devicerdquo118 Licensees must also ldquoensure that vehicle
portals are used for the entry and exit of land vehicles into and from a protected areardquo119
Physical protection measures are also required to reduce the chance of a forced land
vehicle entry into a protected area120
The power to conduct searches upon entry to a protected area is also provided by the
112 SOR2000-209 113 Ibid s 8114 Ibid s 11(a)(i)115 Ibid s 9116 Ibid s 141117 Ibid s 17(1)118 Ibid s 171119 Ibid s 91(1)120 Ibid s 91(4)
49
Nuclear Security Regulations Signs must be posted that are visible to people about to
enter the protected area stating that they must allow a nuclear security officer (ldquoNSOrdquo) to
ldquosearch them and everything in their possession including any land vehicle for weapons
and explosive substancesrdquo121 In addition when leaving the protected area people must
allow NSOs to ldquosearch them and everything in their possession including any land
vehicle for Category I II or III nuclear materialrdquo122 People are not permitted to enter or
leave a protected area unless these searches are carried out123 The Nuclear Security
Regulations provide for the method of search including ldquoa hand-held scanner a walk-
through scanner or any similar devicerdquo124 In addition if an NSO determines it
necessary a frisk search can be carried out by a person of the same sex125
I have been informed that the area outside of but adjacent to the ldquoprotected areardquo is
referred to as the ldquocontrolled areardquo This area includes roadways and waterways within
the nuclear facilityrsquos property boundaries adjacent to or in close proximity to the nuclear
power plantrsquos protected area and may be generally accessible to the public
As a result of the September 11 2001 terrorist attacks the Nuclear Security Regulations
were amended to require that high security nuclear facilities maintain an on-site armed
Nuclear Response Force (ldquoNRFrdquo)126 The NRF is composed of specialized NSOs
Section 32 of the Nuclear Security Regulations requires the NRF to be capable of making
an effective intervention taking into account the threat
121 Ibid s 27(1)(a)122 Ibid s 27(1)(b)123 Ibid s 27(2)124 Ibid s 27(5)(a)125 Ibid s 27(5)(b)126 Ibid s 32
50
Members of the NRF are mandated by the Nuclear Security Regulations to be ldquotrained in
the use of firearms authorized to carry firearms in Canada and qualified to use themrdquo127
However to satisfy this requirement the NRF resorts to the PWPA since the federal
regulations do not authorize the NRF to carry firearms without a licence However
under s 2(1) of the PWPA NSOs are designated as ldquoguardsrdquo with the powers of a peace
officer most significantly to carry and use firearms without having to be licensed128
Such a designation also enables the OPG to acquire and dispose of firearms
In the consultations I had with the OPG and the CNSC they advised me that NSOs
receive training equivalent to Canadian police standards and that NRF officers receive
training equivalent to federal and provincial police tactical team requirements
Another aspect of the PWPA used to secure nuclear power plants relates to powers
exercised by NSOs in ldquocontrolled areasrdquo The federal regulations do not provide the
NSOs with any power to demand identification within this area However pursuant to
the PWPA as appointed ldquoguardsrdquo the NSOs have the power to demand identity
verification in the controlled area They also have the authority to arrest anyone who
obstructs NSOs in the performance of their duties under the PWPA
In addition to using the PWPA to secure the controlled areas I have been advised by the
OPG that NSOs use powers pursuant to the PWPA to secure areas within 100 metres of a
nuclear facilityrsquos property line immediately adjacent to the controlled area These powers
are exercised under the broad language of the PWPA regarding ldquoapproaches to public
127 Ibid s 1 (on-site nuclear response force definition)128 Section 11707 of the Criminal Code exempts peace officers from licensing requirements for possessing firearms and other prohibited and restricted weapons
51
worksrdquo This is an illustration of the problem with the vagueness of this language in the
legislation As these powers are exercised on public land they could be challenged as a
potential infringement on individual rights and freedoms However I have been advised
that there have been no such incidents to date The need to ensure the security of these
facilities must be taken into the balance
NSOs must be able to monitor and control access to the controlled areas and areas close
to a nuclear power plantrsquos property line This provides for a more secure perimeter
around these facilities They need authority to challenge individuals acting in a suspicious
manner or conducting surveillance of nuclear facilities The OPG has informed me that
areas outside a nuclear facilityrsquos property line immediately adjacent to the controlled
area are still close enough to take advantage of the short distance to conduct intelligence
using high-powered surveillance equipment These nuclear power plants are not located
on isolated islands and are therefore vulnerable Both the Pickering Nuclear Generating
Station and the Darlington Nuclear Generating Station operate within major urban areas
being 30 km and 60 km east of downtown Toronto respectively I am advised that
previous events such as ldquoThe Toronto 18rdquo129 have shown that those intent on targeting
vital infrastructure such as power generating facilities often use reconnaissance and
intelligence gathering as precursor tactics
Recommendation
If the PWPA is to be repealed it is imperative that those who secure our nuclear and
power generating facilities be given the requisite specific legislative powers to do so
129 See for example ldquoLast 2 Toronto 18 accused found guiltyrdquo CBC News (23 June 2010) online cbcca lthttpwwwcbccanewscanadatorontostory20100623toronto-18-verdicthtmlgt
52
The source for these powers should be set out in the federal Nuclear Security
Regulations However if this is not a desired option the Government of Ontario must
consider specific legislation setting out the specific powers required to properly secure
these facilities and the specific location in which these powers can be exercised Such
legislation should not be passed without proper notice consultation and legislative
debate
53
SECTION 6 CONCLUSION
The PWPA was enacted in 1939 to support the war effort At the time the protection of
Ontariorsquos hydroelectric facilities from sabotage was of particular concern Since then the
PWPA has been used to provide the legal foundation for the powers exercised by the
police in providing court security and even more recently by the OPG in securing
nuclear power facilities In June 2010 the PWPA was used to provide powers to secure
intergovernmental conferences The vagueness of the PWPA permits it to be used in
situations when it is arguably not necessary and potentially abusive In my view the
PWPA has been used for purposes beyond its original intent
The time for the PWPA seems to have passed If the Government of Ontario enacts as I
have suggested specific legislation to provide for courthouse security and power
generating infrastructure security it would appear that there is no longer a need for the
PWPA I am also mindful of the existence of counter-terrorism and emergencies
legislation to deal with these situations as they arise
ldquoIn determining the boundaries of police powers caution is required to ensure the proper
balance between preventing excessive intrusions on an individualrsquos liberty and privacy
and enabling the police to do what is reasonably necessary to perform their duties in
protecting the publicrdquo130 The overly broad and vague language of the PWPA does not
strike this required balance with individual rights and freedoms
The late Justice Jackson of the United States Supreme Court stated that every
emergency power once conferred ldquolies about like a loaded weapon ready for the hand of
130 R v Clayton [2007] 2 SCR 725 at 742
54
any authority that can bring forward a plausible claim of an urgent needrdquo131 The need to
protect the public must be balanced with the requirement to preserve fundamental rights
and freedoms
Yet at the same time ldquoCanadians are entitled to demand the best public order policing
possible from their governmentrdquo132 There is no question that we live in a different world
post 911 We live in difficult times with constant threats both domestically and from
abroad The police clearly need to be given adequate powers to carry out their duties
The police use their expertise on a daily basis to assess the powers they require In
instances when they take action that exceeds their powers their actions are examined by
various mandated bodies This process I believe results in the proper balance between
police powers and individual rights and freedoms Therefore any legislation that purports
to grant special police powers must be specific and direct and developed in consultation
with stakeholders and tested through thorough debate in our transparent democratic
system
131 Korematsu v United States 323 US 214 (1944)132 Supra note 26 p 8
55
In the days leading up to and throughout the G20 Summit there was apparently a
misunderstanding on the part of the police regarding a purported ldquofive-metre rulerdquo This
confusion likely emanated from the ldquofive-metresrdquo referenced in Schedule 2 of O Reg
23310 However the purpose of Schedule 2 was to designate as ldquopublic work(s)rdquo three
specific private property locations on which the security fence was to be erected that were
not ldquopublic worksrdquo The remainder of the fence was on public sidewalks and streets
which are ldquopublic worksrdquo To ensure that the fence was located on a ldquopublic workrdquo the
drafters designated the area within five metres of the security fence in these three
locations as a ldquopublic workrdquo23 Unfortunately the wording of Schedule 2 was very
cumbersome and the relationship between the area defined in Schedule 1 and the five-
metre reference in Schedule 2 was difficult to understand
Because of this confusion unfortunately the message was conveyed that the regulation
provided for a five-metres zone outside the entire security fence and that therefore the
PWPA applied to this entire area24 The media reported during the G20 summit that the
police had ldquosweepingrdquo powers pursuant to the PWPA within five-metres outside of the
exterior security fence25 O Reg 23310 did not provide the police such authority
23 Attached as Appendix 10 is a copy of a map showing the three specific areas designated in Schedule 2 of O Reg 2331024 Jennifer Yang ldquoJust being near the G20 security zone can get you arrestedrdquo Toronto Star (25 June 2010) online thestarcom lthttpwwwthestarcomnewsgtatorontog20summitarticle828498--just-being-near-the-g20-security-zone-can-get-you-arrestedgt25 David Rider et al ldquoDalton McGuinty Bill Blair defend quiet boost in arrest powersrdquo Toronto Star (26 June 2010) online thestarcom lthttpwwwthestarcomnewsgtatorontog20summitarticle828974--dalton-mcguinty-bill-blair-defend-quiet-boost-in-arrest-powersgt
17
SECTION 3 COMMENTARY
A Public Policy Considerations
There are some overarching public policy considerations which affect the issues I have
been asked to address in the Terms of Reference
As stated earlier the legislation was the product of emergency World War II concerns
related to the possibility of enemy sabotage of important infrastructures The legislative
debates in September of 1939 were particularly concerned with the provincersquos
hydroelectric facilities However notwithstanding these apparently specific concerns
when drafted the definition of ldquopublic workrdquo is extraordinarily broad and from a policy
standpoint raises questions of overbreadth especially given the ability to designate
almost anything a public work In a mere definition section s 1 of the legislation allows
the Lieutenant Governor in Council to designate ldquoany other building place or workrdquo as a
ldquopublic workrdquo However taken to its logical conclusion an entire city or more could be
designated as a ldquopublic workrdquo The definition of ldquopublic workrdquo includes ldquoany provincial
and any municipal public buildingrdquo but ldquopublic buildingrdquo is not further defined thereby
creating an element of uncertainty as to the specific provincial and municipal buildings
captured by this definition While perhaps extreme measures in times of war require
flexibility in all other circumstances legislation of this nature requires limitations and a
more specialized approach
The expression ldquoprivate armyrdquo was used in the Ontario legislative debate in 1939
Theoretically at least private armies could be created through the use of the ldquoguardrdquo
appointing authority by the many individuals who are authorized to appoint guards
pursuant to the PWPA This authority was apparently in response to the Federal
18
Governmentrsquos refusal to assume through the Defence Department the responsibility of
guarding utilities and industries essential to the war effort While such a result might not
have been contemplated in a parliamentary democracy it is clearly unwise to leave such
a possibility open
Section 3 of the PWPA provides in part that a guard or a peace officer
(a) may require any person entering or attempting to enter any public work or any approach thereto to furnish his or her name and addresshellipand to state the purpose for which he or she desires to enter the public work in writing or otherwise
The primary problem I see with this section is the vagueness of the term ldquoapproach
theretordquo An approach could begin at a considerable distance from the public work
Section 6(b) also provides for the making of regulations ldquodefining the areas that
constitute approaches to public works either generally or with regard to a particular
public workrdquo
In addition s 3(b) of the PWPA provides that a guard or peace officer ldquomay search
without warrant any person entering or attempting to enter a public workrdquo This section
does not permit any person to abandon any attempt to enter a public work in order to
avoid being subjected to a warrantless search Such conduct is adopted by persons who
decide not to enter a secured courthouse in order to avoid a warrantless search
Section 4 provides that for the purposes of the PWPA the statement under oath made by
persons engaged in the operation of a public work ldquoas to the boundaries of the public
work is conclusive evidence thereofrdquo Section 4 should be considered with s 5(1) which
provides that ldquoevery person found upon a public work or any approach thereto without
lawful authority the proof whereof lies on him or her is guilty of an offencehellip(emphasis
19
added)rdquo The provision in s 4 that ldquothe statement under oathhellipis conclusive evidence
thereofrdquo appears to remove from a courtrsquos consideration what could be a legitimate
dispute as to the boundaries of a public work or the approach thereto Furthermore the
apparent reversal of the onus of proof regarding lawful authority to be found in a public
work or an approach found in s 5 is also troublesome from a policy and legal point of
view
Accordingly if utilized to the extreme many government officials could appoint many
private armies to restrict access to many (in fact any) public places where the mere
statement under oath by the private guard of the boundaries of the areas under restricted
access is conclusive proof thereof Such potential for abuse is beyond troubling to say
the least
B Review of other Public Reports
As is evident from the foregoing discussion many issues arise regarding the operation of
the PWPA in todayrsquos context These considerations and others also formed the basis of
concerns raised in public reports which I was asked to review
1 Reports of the Canadian Civil Liberties Association
The CCLA preliminary G20 report26 dealt with most of the police related events that
occurred in Toronto during the G20 conference during the weekend of June 26th and 27th
2010 I will only make reference to a few portions of the report that deal with the Terms
of Reference
26 Canadian Civil Liberties Association A Breach of the Peace ndash A Preliminary Report of Observations During the 2010 G20 Summit June 29 2010 online Canadian Civil Liberties Association lthttpcclaorgwordpresswp-contentuploads201006CCLA-Report-A-Breach-of-the-Peace-Preliminary-report-updated-July-8pdfgt
20
The report of the CCLA called for the repeal or significant amendment to the PWPA ldquoto
meet basic constitutional standardsrdquo27 The CCLA ldquosuggests that the broad police powers
granted under the Act are inconsistent with current Charter requirementsrdquo28
I agree with the observation of the CCLA that the provisions of the PWPA led to a ldquolack
of clarity as to the scope of the search and seizure powersrdquo29 which created many
difficulties and conflicts that probably could have been avoided I would also certainly
agree with a conclusory comment in this preliminary report that ldquoit is the duty of police
officers to act with fairness and equanimity toward all citizens in accordance with the law
of the country The presumption of innocence and the protection against arbitrary arrests
and detention are at the core of a commitment to justicerdquo30
The CCLA in partnership with the National Union of Public Employees organized
public hearings for two days in Toronto and one day in Montreal in November of 2010
which they referred to as a Citizens Inquiry The Citizens Inquiry heard from 63 members
of the public who had witnessed policing incidents or had been detained Several lawyers
and academics also participated in the hearing and offered commentary on the events of
the G20 from a legal or policing perspective including issues related to the PWPA A
report of the hearings titled ldquoG20 Toronto Breach of the Peace Public Hearingsrdquo was
released on February 28 2011 which also referred to the PWPA31
27 Ibid p 2228 Ibid p 929 Ibid p 1230 Ibid p 2131 Canadian Civil Liberties Association and the National Union of Public and General Employees G20 Toronto Breach of the Peace Public Hearings February 2011 online Canadian Civil Liberties Association lthttpcclaorgwordpresswp-contentuploads201102Breach-of-the-Peace-Final-Reportpdfgt
21
2 The Ontario Ombudsman Report
The Ontario Ombudsman commenced an investigation after receiving complaints relating
to a variety of issues concerning the G20 The Marin Report recognized that ldquotypically
international summits attract protests and protests can turn violent and even deadlyrdquo32
The report therefore does not quarrel with the requirement that a high level of security is
required for such events
The report in my view accurately describes the PWPA as ldquounique in Canada in terms of
the breadth of its reach and the powers it confershellipno other Canadian statute defining
lsquopublic worksrsquo contains provisions similar to those found in Ontariorsquos Actrdquo33
32 Ontario Ombudsman report Investigation into The Ministry of Community Safety and Correctional Servicesrsquo Conduct in Relation to Ontario Regulation 23310 under the Public Works Protection Act ldquoCaught in the Actrdquo by Andreacute Marin (Toronto Ombudsman of Ontario December 2010) online Ombudsman of Ontario lthttpwwwombudsmanoncamedia157555g20final1-enpdfgt (ldquoMarin Reportrdquo) at para 733 Ibid at para 97
22
SECTION 4 POWERS OF THE POLICE
Pursuant to the Terms of Reference I have been asked to consider for future purposes
whether the powers given to peace officers and guards under the PWPA are necessary to
protect public works secure intergovernmental conferences or for any other purposes
To answer that question it is necessary to assess whether the current common law and
statutory regime provide the police with sufficient powers to perform these vital services
A Common Law Powers and Powers Pursuant to Police Services Acts
The police have extensive common law powers that can be used in protecting and
securing intergovernmental conferences and in protecting public works It is necessary to
examine those powers in order to assess whether and what if any additional powers are
needed such as those provided by the PWPA
Of particular assistance in this regard is R v Knowlton34 where the Supreme Court of
Canada considered whether the powers possessed by peace officers at common law and
statute in securing an area for the protection of a foreign dignitary were lawful The
Supreme Court of Canada held that in order for the exercise of peace officer powers to be
lawful the powers must satisfy the two step test set out in R v Waterfield35 First the
power must be in furtherance of a lawful duty Traditional common law peace officer
duties include the preservation of the peace and the prevention of crime These common
law police duties amongst others are now statutorily enshrined in s 42(1) of Ontariorsquos
Police Services Act (and other provincial police services acts)36 The second part of the
test requires an evaluation of whether the conduct of the peace officer was ldquojustifiedrdquo To
34 [1974] SCR 443 [ldquoKnowltonrdquo]35 See for example R v Dedman [1985] 2 SCR 236 RSO 1990 c P15
23
do so one applies the standard of what is reasonably necessary in light of the totality of
the circumstances In evaluating whether the conduct of the peace officer was justified it
is important to consider ldquothe duty being performed the extent to which some interference
with individual liberty is necessary in the performance of that duty the importance of the
performance of the duty to the public good the nature of the liberty being interfered with
and the nature and extent of the interferencerdquo37
In Knowlton police in Edmonton cordoned off an area as part of the security
arrangements for the visit of Premier Kosygin of the USSR Premier Kosygin had been
assaulted in Ottawa a few days prior to his visit to Edmonton Knowlton entered the
secured area questioning the power of the peace officer to prevent his entry He was
arrested without a warrant and charged with obstructing a peace officer in the execution
of his duties Knowlton argued that the peace officer did not have the power to prevent
his entry and was not acting in the execution of his duty
The Supreme Court of Canada emphasized the heightened importance of security when
there are visiting foreign dignitaries38
It is notorious and of common knowledge that the official visit of the head of state or high rank dignitary of a foreign country friendly as either may be is an event that frequently engenders a real or apprehended threat to the preservation of peace and that calls therefore for the adoption of proper and reasonable security measures in and by the host countryhellipThe restriction of the right of free access of the public to public streetshellipwas one of the steps--not an unusual one--which police authorities considered and adopted as necessary for the attainment of the purpose aforesaid In my opinion such conduct of the police was clearly falling within the general scope of the duties imposed upon them
37 R v Mann [2004] 3 SCR 59 at 7938 Supra note 34 at 447-448
24
In addressing the first part of the Waterfield test the Court referenced provisions of the
Alberta Police Act and the Criminal Code and concluded that the conduct of the peace
officers fell within the general scope of the duties imposed upon them for example
preservation of the peace and prevention of crime39
According to the principles which for the preservation of peace and prevention of crime underlie the provisions of s 30 amongst others of the Criminal Code these official authorities were not only entitled but in duty bound as peace officers to prevent a renewal of a like criminal assault on the person of Premier Kosygin during his official visit in Canada In this respect they had a specific and binding obligation to take proper and reasonable steps The restriction of the right of free access of the public to public streets at the strategic point mentioned above was one of the steps--not an unusual one--which police authorities considered and adopted as necessary for the attainment of the purpose aforesaid In my opinion such conduct of the police was clearly falling within the general scope of the duties imposed upon them
In analyzing the second step of the Waterfield test the Court concluded that there was no
evidence indicating the police officers resorted to an unjustifiable use of the powers
associated with the duties imposed on them
The Court in Knowlton recognized broad police powers to cordon off areas as part of the
security arrangements involving internationally protected persons In addition the Court
found that the warrantless arrest in that case was not an unjustifiable or unreasonable use
of powers associated with the police duties to preserve the peace order public safety and
to enforce the law and prevent crime Finally the Court found that peace officers were
duty bound ldquoto prevent a renewal of a like criminal assault on the person of Premier
Kosygin during his official visit in Canadardquo40 Furthermore it stated the closing of public
39 Ibid 40 Ibid at 447
25
streets ldquowas one of the steps -- not an unusual one -- which police authorities considered
and adopted as necessaryrdquo41
The Knowlton decision clearly acknowledged that the police had the duty and authority to
establish and enforce a secured area to protect a foreign dignitary In order to carry out
these duties the police may do what is reasonably necessary in light of the totality of the
circumstances
Though Knowlton was decided prior to the enactment of the Canadian Charter of Rights
and Freedoms (the ldquoCharterrdquo) this does not in my view affect the clear statement by the
Supreme Court of Canada regarding the duty of the police under the common law and the
Alberta Police Act to provide this security While the facts of Knowlton were quite
compelling in relation to the obvious need to provide adequate security for Premier
Kosygin the decision is equally important authority regarding the general responsibilities
of the police at common law and statute in relation to the preservation of the peace
B Other Statutory Powers
1 Criminal Code
Some specific powers are provided to peace officers pursuant to the Criminal Code42
Section 31 gives peace officers the power to arrest an individual for breach of the peace
Peace officers can arrest those committing the breach of the peace or those who on
reasonable grounds heshe believe are about to join in or renew the breach of the peace
Peace officers also have powers at their disposal under ss 63-69 of the Criminal Code to
deal with the offences of unlawful assembly and riots
41 Ibid at 447-448 42 RSC 1985 c C-46
26
2 Trespass to Property Act
The Ontario Trespass to Property Act43 is a potential source of police power to arrest
without warrant those who are unlawfully on certain premises or who were recently
unlawfully on the premises and refuse to give their name and address44 This statute
deals with illegal entry into both private and public property by creating the offence of
trespass for those who without the express permission of the occupier enter on to
premises or engage in an activity on the premises when it is prohibited by the statute45
Though this statute is primarily used by private property owners to keep unwanted people
off of their property it has also been invoked by the Speaker of the House46 and by the
City of Toronto47 It must be noted however that using the Trespass to Property Act in
relation to removing individuals from ldquopublicrdquo places may raise Charter issues48
3 Foreign Missions and International Organizations Act
The RCMP as peace officers have the general duty to preserve the peace and prevent
crime and offences as set out in s 18 of the Royal Canadian Mounted Police Act49
Additional duties found in s 17 of the Royal Canadian Mounted Police Regulations
198850 include the protection of ldquointernationally protected personsrdquo as defined in s 2 of
the Criminal Code Internationally protected persons include heads of state and their
43 RSO 1990 c T2144 Ibid ss 9(1) 1045 Ibid s 2(1)46R v Behrens [2004] OJ No 5135 (CJ) The Court held that the issue of the trespass notices fell under the Speakerrsquos parliamentary privilege and were not reviewable even on the basis of a Charter argument47R v Semple [2004] OJ No 2137 (CJ)48 In R v Semple the defendants were charged under the Ontario Trespass to Property Act for entering the grounds of Toronto City Hall after being banned from doing so In the end the Court held that the defendantsrsquo peaceful entry onto the grounds was an expression as per s 2(b) of the Charter Torontorsquos notice under the Act infringed on this freedom and in these circumstances it could not be justified under s 1 of the Charter 49 RSC 1985 c R-1050 SOR88-361
27
family members The RCMPrsquos duty to protect internationally protected persons is also
found in s 6(1) of the Security Offences Act51
In addition Canada is a signatory of the United Nations Convention on the Prevention
and Punishment of Crimes against Internationally Protected Persons including
Diplomatic Agents52 This Convention provides that the Government of Canada must
protect visiting heads of state or government foreign ministers representatives or
officials of a state or any official or other agent of an international organization of an
intergovernmental character and the family members that accompany him or her The
RCMP has the responsibility to carry out these security measures
Pursuant to s 101(1) of the FMIOA ldquoThe Royal Canadian Mounted Police has the
primary responsibility to ensure the security for the proper functioning of any
intergovernmental conference in which two or more states participate that is attended by
persons granted privileges and immunities under this Act and to which an order made or
continued under this Act appliesrdquo
The powers to carry out this mandate are found in s 101(2) of the FMIOA ldquothe Royal
Canadian Mounted Police may take appropriate measures including controlling limiting
or prohibiting access to any area to the extent and in a manner that is reasonable in the
circumstancesrdquo It is noteworthy that the FMIOA has legislated the same powers
provided to the police under common law and statute
In order to trigger the RCMP powers described in s 101 the Governor in Council on the
51 RSC 1985 c S-752 UNGA Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons including Diplomatic Agents 20 February 1977 UN Doc I-15410
28
recommendation of the Minister of Foreign Affairs and pursuant to s 5 of the FMIOA
made the G8 Summit Privileges and Immunities Order 201053 on December 10 2009
This order was repealed and a subsequent order54 was made on January 13 2010 A
similar order55 for the G20 Summit was made on March 11 201056
Therefore during the G20 the RCMP had the specific statutory power to limit or
prohibit access to any area and to any extent as long as the measures were appropriate
and done in a manner that was reasonable in the circumstances ldquoThe RCMP may secure
the perimeter of the security zone on land with fencing and restrict access to this zone
through the use of checkpoints and other measuresrdquo57
Though not invoked during the G20 s 101(4) of the FMIOA provides that arrangements
can be entered into with a province concerning the responsibilities of members of the
RCMP and members of the provincial and municipal police forces with respect to
ensuring the security for the proper functioning of an intergovernmental conference No
information was provided to me as to why such an arrangement was not entered into for
the G20
These intergovernmental security provisions of the FMIOA were enacted just prior to the
G8 being held in Kananaskis Alberta in 2002 In light of violent protests at international
events and the 911 terrorist attacks in the United States the Federal Government
53 SOR2009-33654 SOR2010-1355 SOR2010-6256 Supra note 17 ldquoUpon such an Order being made the RCMP in co-operation and collaboration with other police forces becomes impressed with the primary responsibility of ensuring not only the protection of the IPPs but also ensuring lsquosecurity for the proper functioningrsquo of the intergovernmental conference To that end the FMIOA provides that the lsquoappropriate measures including controlling limiting or prohibiting access to any area to the extent and in a manner that is reasonable in the circumstancesrsquo may be takenrdquo57 Ibid
29
considered it timely ldquoto clarify in statute the present common law authority for police to
provide security and protection for high profile international eventsrdquo58 At such events it
was intended that ldquothe RCMP is the lead to make sure that security is providedrdquo59
Given that it was clearly the intention of the Federal Government to have the RCMP as
the lead police force at these international events consideration should be given to
expand the use of the FMIOA to cover all large scale international events such as the
Olympics the Pan American Games and international trade fairs as these events are
routinely attended by heads of state and senior government officials Most recently
Vancouver held the 2010 Olympic and Paralympic Winter Games60 Though federal and
municipal legislation were passed to assist in securing the Games expansion and
application of the FMIOA would have been a better approach The RCMP as the national
police force ought to be in charge pursuant to their authority under the FMIOA
4 Emergency Legislation
Through my consultations with the parties listed in Appendix 2 I heard that while we are
not in a time of war as in 1939 when the PWPA was enacted we live in an age of
international and local terrorism threats Our democratic society must be vigilant in
58 Canada House of Commons Debates 37th Parl 1st Sess No 93 (5 October 2001) at 100059 Canada House of Commons Standing Committee on Public Safety and National Security 40th Parl 3rd
Sess Evidence (25 October 2010)60 In anticipation of this event the Governor General in Council on the recommendation of the Minister of Transport pursuant to the Aeronautics Act (RSC 1985 c A-2) and the Canadian Air Transport Security Authority Act (SC 2002 c 9 s 2) passed the Vancouver 2010 Aviation Security Regulations (SOR2009-298) The purpose of the regulations was to enhance aviation security during the Games The Regulation provided for extra security and extra authorized means to conduct screenings In addition the Vancouver City Council passed the very lengthy By-law No 9962 known as the ldquoVancouver 2010 Olympic and Paralympic Winter Games By-Lawrdquo Specific security measures to be employed at a city live site (described thoroughly in a Schedule to the By-Law) that were enabled by this By-Law included The installation and monitoring of airport style and other security measures including magnetometers and X-ray machines the installation and monitoring of closed circuit television cameras the searching of any person who wished to enter on to a city live site and any bag luggage or other container carried by such person and the prohibiting of access to or removal from a city live site any person who refused to submit to a search
30
maintaining a proper level of security while recognizing that democratic values and
security issues can conflict where public order is at issue It is important to highlight that
provincial legislation exists dealing with both terrorism threats and emergency situations
I have been informed that federal and provincial counter-terrorism plans exist that
address preventing and responding to acts of terrorism
The Police Services Act regulations mandate police forces to establish procedures
consistent with federal and provincial counter-terrorism plans61 and to have policies with
respect to counter-terrorism62 In addition the Emergency Management and Civil
Protection Act allows for orders to be made in situations specifically designated an
ldquoemergencyrdquo63 by the Lieutenant Governor in Council or the Premier that regulate or
prohibit travel and movement to from or within any specified area64 Therefore the
PWPA is not needed to deal with these emergency situations as specific more recent
emergency legislation is in place for that very purpose
C Gaps in Canadian Police Powers
The Ministry of Community Safety and Correctional Services provided me with an
interesting article published in 2010 entitled ldquoThe Gap in Canadian Police Powers
61 Adequacy and Effectiveness of Police Services O Reg 399 s 2862 Ibid s 2963 Section 1 of the Emergency Management and Civil Protection Act defines an ldquoemergencyrdquo as ldquoemergencyrdquo means a situation or an impending situation that constitutes a danger of major proportions that could result in serious harm to persons or substantial damage to property and that is caused by the forces of nature a disease or other health risk an accident or an act whether intentional or otherwise (ldquosituation drsquourgencerdquo)64 RSO 1990 c E9 s 702(4)
31
Canada needs lsquoPublic Order Policingrsquo Legislationrdquo and co-authored by Wesley Pue and
Robert Diab65
This article was prompted by the debate over the cost nature and extent of security to be
employed at the Vancouver 2010 Winter Olympics The authors criticized the fact that
policing authorities in Canada ldquolack specific statutory authorization to take measures
commonly thought necessary to their missionrdquo66 These measures included security
fences in public areas designated protest areas restricted access to public space police
surveillance and searches without cause
The authors recognize that such powers may be necessary but note that ldquono legislature
has ever expressly conferred such powers on policing authorities outside the context of
international intergovernmental conferences Nor does the common law accord such
powers to state officials on its ownrdquo67 I respectfully disagree with this latter statement
It is my view the police have powers pursuant to the common law and statute as I have
discussed in the preceding section
The authors referred to R v Knowlton68 which I have previously discussed While the
authors give Knowlton a very narrow interpretation stating that ldquoits binding principle is a
good deal narrower than the words taken out of context might suggestrdquo69 I however am
of the view that the decision supports the proposition that police have a broad range of
65 Wesley Pue and Robert Diab ldquoThe Gap In Canadian Police Powers Canada Needs lsquoPublic Order Policingrsquo Legislationrdquo (2010) 28 Windsor Rev Legal Soc Issues 87 Wesley Pue is a professor of legal history at the University of British Columbia and Robert Diab is a PhD candidate at the UBC Faculty of Law66 Ibid p 8867 Ibid68 Supra note 3469 Supra note 65 p 92
32
responsibilities with deep historical roots in the common law and codified in statute a
position shared by the Federal Government when it introduced amendments to the
FMIOA The actions of the police in Knowlton were necessarily incidental to their
common law police duties and powers
The authors conclude that this ldquoauthority of police to create zones of exclusion either as
an incident of the general and ancient duties of constableshelliphas never been established in
the courtsrdquo70 I am of the view however that the role of the police in establishing
security zones relating to a crime a serious accident or other emergency is a routine and
well-accepted use of police powers pursuant to their common law and statutory duties I
am not suggesting that this common law authority permits the police to establish security
zones ldquofor the proper functioning of any intergovernmental conference in which two or
more states participaterdquo71 larger than necessary to fulfill their purpose The FMIOA as
amended in 2002 provides the RCMP with ldquoprimary responsibility to ensure the security
for the proper functioning of the intergovernmental conferencerdquo72 It is interesting
however that when the Federal Government was enacting this specific authority the
legislative debates indicated that the government was merely clarifying ldquoin statute the
present common law authority for police to provide security and protection for high
profile international eventsrdquo73
Security perimeters are routinely erected by police in the context of the commission of a
crime motor vehicle and other accidents as well as the Santa Claus parade and other
70 Ibid p 9671 Supra note 8 s 101(1)72 Ibid73 Supra note 58
33
parades It would in my view be quite impractical and unnecessary to legislate an
extensive code of police powers given their common law and statutory responsibilities to
generally maintain public order It is not advisable in my opinion to be prescriptive in
any way regarding what actions the police can take since they must assess what the
situation warrants while at the same time considering individual rights and freedoms
The details of any police response to an emergency must be tailored to the exigencies
related to the situation
The police clearly have common law and statutory authority to conduct warrantless
searches in specific situations (ldquoin exigent circumstancesrdquo)74 However when
warrantless searches must be carried out on a regular routine basis the police are acting
more like full time security guards and there should be specific statutory authority
provided to give such powers
I certainly accept the general proposition the authors assert that the mobility rights of
citizens should not be unreasonably or unfairly dealt with However one only need be
aware of the massive amount of construction taking place on the streets of Toronto as this
Report is being written to appreciate that it is not always reasonable to expect that ldquothe
rights of businesses homeowners and ordinary citizens to go about their routine
activities without interruptionrdquo75 will go unhindered While generally desirable it cannot
be legally guaranteed At the same time the authors do concede that ldquoimportant as they
74 Supra note 42 s 4871175 Supra note 65 p 89
34
are the rights of assembly movement and protest are not unqualified They can ndash and
should ndash be balanced against other important public needsrdquo76
In my view public policing at times requires innovation as it often benefits from
creative problem solving If police abuse their common law powers related to ldquopublic
order policingrdquo they are accountable to a multiplicity of authorities and the rule of law
most particularly the Charter The legal rights outlined in the Charter such as ldquothe
principles of fundamental justicerdquo77 security ldquoagainst unreasonable search and seizurerdquo78
and ldquothe right not to be arbitrarily detained or imprisonedrdquo79 are described very
generally However they were chosen deliberately as it was recognized that in each case
there is an inherent tension between imposing security measures and fundamental rights
and freedoms Determining which is paramount will be based on the facts of each case
76 Ibid p 9177 Canadian Charter of Rights and Freedoms s 7 Part I of the Constitution Act 1982 being Schedule B to the Canada Act 1982 (UK) 1982 c 1178 Ibid s 879 Ibid s 9
35
SECTION 5 LEGAL ANALYSIS OF THE PUBLIC WORKS PROTECTION ACT
A Legal Analysis of the Legislation
Many stakeholders have questioned the constitutional validity of the PWPA and O Reg
23310 The Ontario Ombudsman seriously questioned whether O Reg 23310 could
pass ldquoconstitutional musterrdquo80 The CCLA suggested that the broad police powers
granted under the PWPA were inconsistent with the Charter81
To the same effect were comments made by Premier Dalton McGuinty who described
the PWPA as ldquoan archaic law that was used to undermine Torontoniansrsquo civil rights
during the G20rdquo82 He elaborated83
The issue is whether itrsquos appropriate given our present-day values and given an old law which I am confident doesnrsquot strike the balance that you and I would want today in terms of public safety and individual freedom of expressionhellipWhen you start talking about civil rights individual freedoms yoursquore talking about those things that in fact define us as a free and democratic societyhellipItrsquos something that is real and meaningful and important to all of us
The Terms of Reference for this Review do not require that I conduct a constitutional
analysis of the PWPA I have however been asked to consider areas for reform and if
appropriate make specific recommendations for amendment or repeal This does require
that I therefore consider whether the legislation may be vulnerable to constitutional
challenge
Section 2(b) of the Charter guarantees everyone the fundamental freedom of expression
The definition of ldquoexpressionrdquo has been interpreted broadly ldquoActivity is expressive if it
80 Supra note 32 at para 23381 Supra note 26 p 982 Robert Benzie and Rob Ferguson ldquoMcGuinty shifts focus to fixing G20 lawrdquo Toronto Star (10 December 2010) online thestarcom lthttpwwwthestarcomnewscanadaarticle905436--mcguinty-shifts-focus-to-fixing-g20-lawgt 83 Ibid
36
attempts to convey meaningrdquo84 While freedom of expression is not absolute there is
very little that is not considered expression However expression that advocates violence
is not protected under s 2(b)85
The Supreme Court of Canada in Committee for the Commonwealth of Canada v
Canada held that s 2(b) ldquodoes not encompass the right to use any and all government
property for purposes of disseminating onersquos views on public matters but I have no doubt
that it does include the right to use for that purpose streets and parks which are dedicated
to the use of the public subject no doubt to reasonable regulation to ensure their
continued use for the purposes to which they are dedicatedrdquo86 It seems clear that
protesting in public streets is a form of expression protected by s 2(b) Protesting at an
intergovernmental conference is clearly expressive in nature
In challenges alleging that a statute contravenes s 2(b) of the Charter a court would
examine whether the purpose or effect of a law contravenes section 2(b)87 There is no
reason to suggest that the purpose of the PWPA was to infringe the freedom of
expression The purpose of the PWPA is to protect important public infrastructures A
court would then have to consider whether the effect of the PWPA may have resulted in
an infringement of freedom of expression
O Reg 23310 defined significant portions of downtown Toronto as a ldquopublic workrdquo
Section 3(c) of the PWPA allows peace officers to refuse entry into public works which
therefore limits the areas in which protesters could express themselves By creating the
84 Irwin Toy Ltd v Queacutebec (Attorney General) [1989] 1 SCR 927 at 96885 Ibid at 97086 [1991] 1 SCR 139 at 165-16687 Peter Hogg Constitutional Law of Canada loose-leaf (consulted on 7 January 2011) 5th ed (Toronto Thomson Reuters Canada Limited 2007) at 43-6
37
relatively large security perimeter designated by the regulation individuals may allege
they were not permitted to communicate directly with those they were protesting against
Furthermore individuals could not communicate in public places such as public streets
where the right to freedom of expression has previously been found to exist88
Commissioner Ted Hughes completed an interim report following a public hearing into
the complaints regarding events that took place with respect to the Asia Pacific Economic
Cooperation (APEC) Conference in Vancouver British Columbia in November 1997
Commissioner Hughes recommended that generous opportunity should be afforded to
peaceful protesters to be seen in their protest activities by guests at the event89
Section 7 of the Charter provides that ldquoEveryone has the right to life liberty and security
of the person and the right not to be deprived thereof except in accordance with the
principles of fundamental justicerdquo The PWPA raises issues regarding the liberty and
security of the person in providing for warrantless searches and stopping for
identification Furthermore vague laws offend two fundamental values of our legal
system90 Firstly individuals are not provided with sufficient guidance as to what
behaviour a law prohibits Secondly those in charge of enforcing the law are not
provided with clear guidance as to how to enforce it A vague law can lead to inconsistent
and arbitrary enforcement91
88 Supra note 86 89 Canada Commission for Public Complaints Against the RCMP APEC ndash Commission Interim Report (31 July 2001) at s 3111 (Commissioner Ted Hughes QC) online Commission for Public Complaints Against the RCMP lthttpwwwcpc-cppgccaprrrepphrapecapec-31-engaspxgt90 Supra note 87 at 47-60 91 ldquoA vague provision does not provide an adequate basis for legal debate that is for reaching a conclusion as to its meaning by reasoned analysis applying legal criteria It does not sufficiently delineate any area of risk and thus can provide neither fair notice to the citizen nor a limitation of enforcement discretion Such
38
As described by Professor Hogg92
The requirement that any limit on rights be prescribed by law reflects two values that are basic to constitutionalism or the rule of law First in order to preclude arbitrary and discriminatory action by government officials all official action in derogation of rights must be authorized by law Secondly citizens must have reasonable opportunity to know what is prohibited so that they can act accordingly Both these values are satisfied by a law that fulfils two requirements (1) the law must be adequately accessible to the public and (2) the law must be formulated with sufficient precision to enable people to regulate their conduct by it and to provide guidance to those who apply the law
As I stated earlier the phrase ldquoany approach theretordquo contained in s 3(a) of the PWPA is
potentially vague No criteria are provided to assist in determining when one is on ldquoany
approach theretordquo A phrase such as ldquoany approach theretordquo is subject to many potential
interpretations It is arguable that this language does not provide reasonable guidance for
individuals to obey the law and for the law to be consistently enforced
Section 8 of the Charter provides that ldquoEveryone has the right to be secure against
unreasonable search or seizurerdquo A warrantless search or seizure is only reasonable if the
search was authorized by law the law itself is reasonable and the manner in which the
search carried out was reasonable93 The fact that no reasonable or probable suspicions
are needed to carry out a search pursuant to s 3(b) of the PWPA raises some issues The
only prerequisite to such a search is that the person or vehicle being subjected to a search
is entering or attempting to enter a public work
a provision is not intelligible to use the terminology of previous decisions of this Court and therefore it fails to give sufficient indications that could fuel a legal debaterdquo (R v Nova Scotia Pharmaceutical Society [1992] 2 SCR 606 at 639-640) 92 Supra note 87 at 38-1293 R v Nolet [2010] SCJ No 24 at para 21
39
Whether the PWPArsquos s 3(b) authority to undertake warrantless searches is ldquoreasonablerdquo
depends on the reasonableness of the impact on the subject of the search ldquoThe
individuals reasonable expectation of privacy must of course be balanced against the
public interest in effective law enforcementrdquo94 It is harder to justify a warrantless search
where the reasonable expectation of privacy is higher For example interference with
bodily integrity will raise the standard of reasonableness Conversely in situations where
people expect to have a lower level of privacy the standard to prove reasonableness is
lower
One rightfully has some expectation of privacy when in public but it does not rise to the
level of privacy that one expects in onersquos home The expectation of privacy further
decreases when one attempts to enter a ldquopublic workrdquo especially in the context of a
secured barrier to an intergovernmental conference
Section 9 of the Charter provides that ldquoEveryone has the right not to be arbitrarily
detained or imprisonedrdquo95 Under s 3(a) of the PWPA a person entering or attempting to
enter or approach a public work must provide his or her name and address and state the
purpose for which he or she desires to enter the public work In order for a guard or
peace officer to carry out this duty the guard or peace officer may ldquostoprdquo the person from
further approaching or entering the public work and the person is not permitted under the
statute to decide not to enter By so doing it is arguable the guard or peace officer has
assumed control over the movement of the individual by a demand or direction The
94 R v Rao [1984] OJ No 3180 at para 79 (CA)95 ldquoDetention under s 9hellipof the Charter refers to a suspension of the individualrsquos liberty interest by a significant physical or psychological restraint Psychological detention is established either where the individual has a legal obligation to comply with the restrictive request or demand or a reasonable person would conclude by reason of the state conduct that he or she had no choice but to complyrdquo (R v Grant [2009] SCJ No 32 at para 44)
40
PWPA provides for a significant legal consequence if the demand or direction is not
followed since ldquoEvery person who neglects or refuses to comply with a request or
direction made under this Act by a guard or peace officer and every person found upon a
public work or any approach thereto without lawful authority the proof whereof lies on
him or her is guilty of an offence and on conviction is liable to a fine of not more than
$500 or to imprisonment for a term of not more than two months or to bothrdquo96
Pursuant to s 3(b) of the PWPA a guard or peace officer may search any person entering
or attempting to enter a public work These searches would necessitate the detention of a
person If a guard or peace officer performs such a search he or she has taken control
over the movement of the person by a demand or direction The same serious legal
consequence results from failing to obey this demand or direction as that which results
from failing to obey the demand or direction pursuant to s 3(a) of the PWPA As a
result ldquodetentionsrdquo could occur pursuant to both s 3(a) and s 3(b) of the PWPA
The question that would need to be addressed in any challenge to the PWPA is whether
the detentions permitted by the PWPA are arbitrary in nature The use of the term ldquoany
approach theretordquo is vague and imprecise A person could be deemed to be on ldquoany
approach theretordquo a great distance from the entrance of a public work and their detention
might very well be arbitrary In addition the fact that the guards and peace officers
determine the boundaries of the ldquoapproachesrdquo which cannot be contested seems
arbitrary as well as who they chose to search
96 It should be noted that not all communications with state authorities and police officers will amount to a detention The question is whether a person may reasonably believe that he or she is free to refuse to comply
41
Section 11(d) of the Charter provides that ldquoAny person charged with an offence has the
right to be presumed innocent until proven guilty according to law in a fair and public
hearing by an independent and impartial tribunalrdquo This requires that the Crown have the
burden of proving the guilt of an individual charged with an offence97 Provisions that
place the burden on the accused to disprove on the balance of probabilities an essential
element of an offence raises s 11(d) concerns because convictions would be possible
even if reasonable doubt existed98 The presumption of innocence is not only infringed
upon by a requirement that an accused disprove an essential element of an offence but
also any requirement on an accused to prove a fact on the balance of probabilities to
avoid conviction
Section 5(1) of the PWPA states that ldquoEvery person who neglects or refuses to comply
with a request or direction made under this Act by a guard or peace officer and every
person found upon a public work or any approach thereto without lawful authority the
proof whereof lies on him or her is guilty of an offence and on conviction is liable to a
fine of not more than $500 or to imprisonment for a term of not more than two months or
to bothrdquo For the offence of being found upon a public work or on any approach to a
public work without lawful authority the burden of proof has been ldquoshiftedrdquo from the
Crown to the accused to prove lawful authority
As the foregoing analysis reveals there are certainly many concerns that arise when one
places the PWPA under the lens of the Charter However the rights and freedoms
provided by the Charter are not absolute They are ldquosubject only to such reasonable
97 R v Oakes [1986] 1 SCR 10398 Ibid at 132
42
limits prescribed by law as can be demonstrably justified in a free and democratic
societyrdquo99
In assessing whether a law which infringes the Charter is saved by s 1 a court examines
both the object of the law and the measures taken to achieve that objective A lawrsquos
objective achieves the status of being sufficiently important to justify overriding a
Charter right only when it is consistent with the values of a free and democratic society
The objective must relate to pressing and substantial concerns and not concerns that are
trivial and must be focussed on ldquothe realization of collective goals of fundamental
importancerdquo100 The measures adopted must be ldquorationally connectedrdquo to the objective of
the law101 The measures ldquoshould impair lsquoas little as possiblersquo the right or freedom in
questionrdquo102 Furthermore there must be ldquoa proportionality between the effects of the
measures which are responsible for limiting the Charter right or freedom and the
objective which has been identified as of lsquosufficient importancersquordquo103
An issue that may affect whether the potential limitation on rights and freedoms of the
PWPA and O Reg 23310 were ldquoprescribed by lawrdquo is whether the regulation was
adequately accessible to the public The Ontario Ombudsman the CCLA and the Ontario
Bar Association (ldquoOBArdquo) all noted a lack of notice regarding O Reg 23310 and its
effects prior to and during the G20 While the text of the regulation was available prior
99 Charter s 1 The Superior Court of Quebec decision of Tremblay v Queacutebec (Attorney General) [2001] JQ No 1504 (CS) involved an interim injunction brought by an applicant who was denied entry into the secured perimeter during the 2001 Summit of the Americas in Queacutebec City The applicant sought an injunction to either eliminate the security barrier or to be given a pass to let him within the secured perimeter Even though the Court held that the erection of the security zone violated the applicantrsquos right to freedom of expression and peaceful assembly The court held that the infringement was ldquodemonstrably justified in a free and democratic societyrdquo100 Supra note 97 at 136101 Ibid at 139102 Ibid103 Ibid
43
to the G20 it was only available on a website not frequently accessed by the public
Since O Reg 23310 was not published in The Ontario Gazette until after it was
revoked it may be that the regulation was not adequately accessible to the public
Reverse onus offences have been found to be ldquorationally connectedrdquo when there is plainly
a rational connection between the proven fact and the fact to be presumed Reverse
onuses have also been upheld when the burden placed on the Crown would be virtually
impossible to meet (such as proving sanity)104 Even if the accused only has the burden
of disproving the fact that heshe did not have lawful authority to be in a public work or
on an approach thereto there may not be a rational connection between the proven fact
and the fact to be presumed
The history of threats and violence at previous intergovernmental conferences
demonstrated that the protection of G20 participants was a pressing and substantial
concern However given the broadness of the PWPA every exercise of it raises the
potential for Charter scrutiny
Recommendation
Given the public policy considerations I have raised regarding the PWPA and Charter
concerns that could arise I recommend that the PWPA be repealed after the Province has
considered potential policy and security gaps as a result of its repeal
B Other uses of the Public Works Protection Act
It appears from my consultations with stakeholder groups that if the PWPA is repealed
104 R v Chaulk [1990] 3 SCR 1303 at 1340
44
there are two areas which may require legislation to provide specific peace officer
powers These two areas are court security and the protection of nuclear power facilities
and other power generating infrastructures
1 Court Security
During my decade as Ontariorsquos Attorney General (1975 to 1985) there were three
murders in provincial courthouses as well as many threats to members of courthouse staff
and others As violent acts in courthouses can be anticipated courtroom security is often
required
Individuals are compelled to go to court for a variety of reasons such as appearing as an
accused as a witness or for jury duty To provide protection to those who work there or
are compelled to attend an adequate level of court security may require a search without
warrant of each and every individual who seeks to enter a courthouse It is not reasonable
to require prior judicial authorization for each search that takes place
The courts have considered the constitutionality of these provisions of the PWPA in
conjunction with section 137 of the Ontario Police Services Act in the context of court
security
Section 137 of the Ontario Police Services Act imposes a responsibility on municipal
police services boards to secure the premises where court proceedings are conducted and
includes
1 Ensuring the security of judges and of persons taking part in or attending proceedings
45
2 During the hours when judges and members of the public are normally present ensuring the security of the premises
3 Ensuring the secure custody of persons in custody who are on or about the premises including persons taken into custody at proceedings
4 Determining appropriate levels of security for the purposes of paragraphs 1 2 and 3
In R v Campanella105 Ms Campanella was attending the John Sopinka Courthouse in
Hamilton At the courthouse there were signs posted stating that those who entered
would be searched for weapons When Ms Campanellarsquos bag was searched marijuana
was found and she was charged with the possession of marijuana She argued that her s
8 Charter protection against unreasonable search and seizure had been violated and the
marijuana discovered during the search should therefore be excluded as evidence The
trial judge and the summary convictions appeal court rejected the section 8 Charter
argument and the appellant appealed to the Ontario Court of Appeal
The Ontario Court of Appeal agreed that ldquogiven the importance of the government
objective and the context in which these searches take place it is reasonable to authorize
warrantless searches of those entering courthouse facilitiesrdquo106 The Court stated ldquothe
only effective way to diminish the risk in a large courthouse is to subject everyone
without prior security clearance to some kind of inspection I can see no other feasible
means of achieving the aimrdquo107
The Court also pointed out the concern relating to the erosion of the benefits and
105 [2002] OJ No 5104 (SCJ) affrsquod [2005] OJ No 1345 (CA) [ldquoCampanellardquo]106 R v Campanella [2005] OJ No 1345 at para 17 (CA)107 Ibid at para 19
46
protections conferred by s 8 of the Charter108
I am sensitive to the concern that we should not erode the benefits and protections of s 8 by gradually sanctioning ever-greater intrusions into privacy because of unfounded fears We should not lightly accept that searches in public places are justified solely because people have become used to them and expect them However the record in this case establishes the justification for the kinds of searches carried out in this case
Ultimately the appeal was dismissed and s 137 of the Police Services Act and s 3(b) of
the PWPA) were held to comply with s 8 of the Charter109
In its consultations with me the OBA similarly stated that the existing nature of court
security is necessary and is generally ldquowell toleratedrdquo At the same time however it
submits that the security regime should not be ldquoshoehornedrdquo into the PWPA regime and
that it would be preferable to provide a legislative framework tailored for the specific
security requirements While the PWPA has been relied upon as support for the exercise
of powers by the police in providing court security the OBA submits that the PWPArsquos
ldquosingle security schemerdquo which declares something a ldquopublic workrdquo is an ldquoawkward
blunt instrument in a world where more specialized tools are necessaryrdquo When
warrantless searches are being done on a routine basis it is advisable to have specific
legislation providing peace officers with such power
Recommendation
Court security legislation is currently in place in many jurisdictions across Canada and
contain provisions that permit warrantless searches of persons wanting to access a
108 Ibid at para 25109 The Court in R v SS [2005] OJ No 5002 (SCJ) agreed with the findings and rationale of the Court of Appeal in Campanella
47
courthouse The constitutional validity of such legislation in Manitoba was upheld by that
provincersquos highest court110
Given the ongoing need for warrantless searches at courthouses the Province of Ontario
should consider specific court security legislation in Ontario to support the security
measures in our courthouses if the PWPA is to be repealed taking into consideration the
responsibilities of the municipal police services boards provided in s 137 of the Police
Services Act This legislation should only be passed after proper notice consultation and
legislative debate
2 Power Generating Infrastructures
It is clear from the submissions that I received from representatives of OPG and the
Canadian Nuclear Safety Commission (ldquoCNSCrdquo) that the PWPA currently plays a role in
providing security officers with the powers to secure power generating infrastructures
including the ability to carry firearms and the ability to stop and require identification
from those in proximity to those nuclear plants
Security is of the utmost importance in protecting a nuclear power plant Members of the
public do not need to access a nuclear or similar power facility unless employed at the
facility or carrying out work for the facility111
The security of areas within nuclear power plants is governed by the Nuclear Security
110 R v Lindsay [2004] MJ No 380 (CA) 111 Though the discussion focuses on nuclear power plants I have been informed that other power generating infrastructures use the PWPA to designate their security officers as guards As a result if the PWPA is repealed it will be necessary to broaden the consultations in relation to these other power generating infrastructures
48
Regulations112 Every nuclear power plant must be located within a ldquoprotected areardquo113
This protected area is the area within a fenced perimeter which is alarmed and
continually patrolled This area must be equipped with devices that employ two
independent systems to detect intrusion into the area114 The Nuclear Security
Regulations also provide detailed specifications for the barrier which must enclose the
protected area115 In addition licensees must ldquoidentify all vital areas and implement
physical protection measures ndash including access control and measures designed to delay
unauthorized accessrdquo116
The Nuclear Security Regulations also provide detailed provisions regarding entry into
protected areas No person can ldquoenter a protected area without physical proof of the
recorded authorization of the licenseerdquo117 Further to this on entry into a protected area
ldquothat personrsquos identity shall be verified by two separate personnel identity verification
systems one of which is an access card reader and the other of which is a biometric
personnel identity verification devicerdquo118 Licensees must also ldquoensure that vehicle
portals are used for the entry and exit of land vehicles into and from a protected areardquo119
Physical protection measures are also required to reduce the chance of a forced land
vehicle entry into a protected area120
The power to conduct searches upon entry to a protected area is also provided by the
112 SOR2000-209 113 Ibid s 8114 Ibid s 11(a)(i)115 Ibid s 9116 Ibid s 141117 Ibid s 17(1)118 Ibid s 171119 Ibid s 91(1)120 Ibid s 91(4)
49
Nuclear Security Regulations Signs must be posted that are visible to people about to
enter the protected area stating that they must allow a nuclear security officer (ldquoNSOrdquo) to
ldquosearch them and everything in their possession including any land vehicle for weapons
and explosive substancesrdquo121 In addition when leaving the protected area people must
allow NSOs to ldquosearch them and everything in their possession including any land
vehicle for Category I II or III nuclear materialrdquo122 People are not permitted to enter or
leave a protected area unless these searches are carried out123 The Nuclear Security
Regulations provide for the method of search including ldquoa hand-held scanner a walk-
through scanner or any similar devicerdquo124 In addition if an NSO determines it
necessary a frisk search can be carried out by a person of the same sex125
I have been informed that the area outside of but adjacent to the ldquoprotected areardquo is
referred to as the ldquocontrolled areardquo This area includes roadways and waterways within
the nuclear facilityrsquos property boundaries adjacent to or in close proximity to the nuclear
power plantrsquos protected area and may be generally accessible to the public
As a result of the September 11 2001 terrorist attacks the Nuclear Security Regulations
were amended to require that high security nuclear facilities maintain an on-site armed
Nuclear Response Force (ldquoNRFrdquo)126 The NRF is composed of specialized NSOs
Section 32 of the Nuclear Security Regulations requires the NRF to be capable of making
an effective intervention taking into account the threat
121 Ibid s 27(1)(a)122 Ibid s 27(1)(b)123 Ibid s 27(2)124 Ibid s 27(5)(a)125 Ibid s 27(5)(b)126 Ibid s 32
50
Members of the NRF are mandated by the Nuclear Security Regulations to be ldquotrained in
the use of firearms authorized to carry firearms in Canada and qualified to use themrdquo127
However to satisfy this requirement the NRF resorts to the PWPA since the federal
regulations do not authorize the NRF to carry firearms without a licence However
under s 2(1) of the PWPA NSOs are designated as ldquoguardsrdquo with the powers of a peace
officer most significantly to carry and use firearms without having to be licensed128
Such a designation also enables the OPG to acquire and dispose of firearms
In the consultations I had with the OPG and the CNSC they advised me that NSOs
receive training equivalent to Canadian police standards and that NRF officers receive
training equivalent to federal and provincial police tactical team requirements
Another aspect of the PWPA used to secure nuclear power plants relates to powers
exercised by NSOs in ldquocontrolled areasrdquo The federal regulations do not provide the
NSOs with any power to demand identification within this area However pursuant to
the PWPA as appointed ldquoguardsrdquo the NSOs have the power to demand identity
verification in the controlled area They also have the authority to arrest anyone who
obstructs NSOs in the performance of their duties under the PWPA
In addition to using the PWPA to secure the controlled areas I have been advised by the
OPG that NSOs use powers pursuant to the PWPA to secure areas within 100 metres of a
nuclear facilityrsquos property line immediately adjacent to the controlled area These powers
are exercised under the broad language of the PWPA regarding ldquoapproaches to public
127 Ibid s 1 (on-site nuclear response force definition)128 Section 11707 of the Criminal Code exempts peace officers from licensing requirements for possessing firearms and other prohibited and restricted weapons
51
worksrdquo This is an illustration of the problem with the vagueness of this language in the
legislation As these powers are exercised on public land they could be challenged as a
potential infringement on individual rights and freedoms However I have been advised
that there have been no such incidents to date The need to ensure the security of these
facilities must be taken into the balance
NSOs must be able to monitor and control access to the controlled areas and areas close
to a nuclear power plantrsquos property line This provides for a more secure perimeter
around these facilities They need authority to challenge individuals acting in a suspicious
manner or conducting surveillance of nuclear facilities The OPG has informed me that
areas outside a nuclear facilityrsquos property line immediately adjacent to the controlled
area are still close enough to take advantage of the short distance to conduct intelligence
using high-powered surveillance equipment These nuclear power plants are not located
on isolated islands and are therefore vulnerable Both the Pickering Nuclear Generating
Station and the Darlington Nuclear Generating Station operate within major urban areas
being 30 km and 60 km east of downtown Toronto respectively I am advised that
previous events such as ldquoThe Toronto 18rdquo129 have shown that those intent on targeting
vital infrastructure such as power generating facilities often use reconnaissance and
intelligence gathering as precursor tactics
Recommendation
If the PWPA is to be repealed it is imperative that those who secure our nuclear and
power generating facilities be given the requisite specific legislative powers to do so
129 See for example ldquoLast 2 Toronto 18 accused found guiltyrdquo CBC News (23 June 2010) online cbcca lthttpwwwcbccanewscanadatorontostory20100623toronto-18-verdicthtmlgt
52
The source for these powers should be set out in the federal Nuclear Security
Regulations However if this is not a desired option the Government of Ontario must
consider specific legislation setting out the specific powers required to properly secure
these facilities and the specific location in which these powers can be exercised Such
legislation should not be passed without proper notice consultation and legislative
debate
53
SECTION 6 CONCLUSION
The PWPA was enacted in 1939 to support the war effort At the time the protection of
Ontariorsquos hydroelectric facilities from sabotage was of particular concern Since then the
PWPA has been used to provide the legal foundation for the powers exercised by the
police in providing court security and even more recently by the OPG in securing
nuclear power facilities In June 2010 the PWPA was used to provide powers to secure
intergovernmental conferences The vagueness of the PWPA permits it to be used in
situations when it is arguably not necessary and potentially abusive In my view the
PWPA has been used for purposes beyond its original intent
The time for the PWPA seems to have passed If the Government of Ontario enacts as I
have suggested specific legislation to provide for courthouse security and power
generating infrastructure security it would appear that there is no longer a need for the
PWPA I am also mindful of the existence of counter-terrorism and emergencies
legislation to deal with these situations as they arise
ldquoIn determining the boundaries of police powers caution is required to ensure the proper
balance between preventing excessive intrusions on an individualrsquos liberty and privacy
and enabling the police to do what is reasonably necessary to perform their duties in
protecting the publicrdquo130 The overly broad and vague language of the PWPA does not
strike this required balance with individual rights and freedoms
The late Justice Jackson of the United States Supreme Court stated that every
emergency power once conferred ldquolies about like a loaded weapon ready for the hand of
130 R v Clayton [2007] 2 SCR 725 at 742
54
any authority that can bring forward a plausible claim of an urgent needrdquo131 The need to
protect the public must be balanced with the requirement to preserve fundamental rights
and freedoms
Yet at the same time ldquoCanadians are entitled to demand the best public order policing
possible from their governmentrdquo132 There is no question that we live in a different world
post 911 We live in difficult times with constant threats both domestically and from
abroad The police clearly need to be given adequate powers to carry out their duties
The police use their expertise on a daily basis to assess the powers they require In
instances when they take action that exceeds their powers their actions are examined by
various mandated bodies This process I believe results in the proper balance between
police powers and individual rights and freedoms Therefore any legislation that purports
to grant special police powers must be specific and direct and developed in consultation
with stakeholders and tested through thorough debate in our transparent democratic
system
131 Korematsu v United States 323 US 214 (1944)132 Supra note 26 p 8
55
SECTION 3 COMMENTARY
A Public Policy Considerations
There are some overarching public policy considerations which affect the issues I have
been asked to address in the Terms of Reference
As stated earlier the legislation was the product of emergency World War II concerns
related to the possibility of enemy sabotage of important infrastructures The legislative
debates in September of 1939 were particularly concerned with the provincersquos
hydroelectric facilities However notwithstanding these apparently specific concerns
when drafted the definition of ldquopublic workrdquo is extraordinarily broad and from a policy
standpoint raises questions of overbreadth especially given the ability to designate
almost anything a public work In a mere definition section s 1 of the legislation allows
the Lieutenant Governor in Council to designate ldquoany other building place or workrdquo as a
ldquopublic workrdquo However taken to its logical conclusion an entire city or more could be
designated as a ldquopublic workrdquo The definition of ldquopublic workrdquo includes ldquoany provincial
and any municipal public buildingrdquo but ldquopublic buildingrdquo is not further defined thereby
creating an element of uncertainty as to the specific provincial and municipal buildings
captured by this definition While perhaps extreme measures in times of war require
flexibility in all other circumstances legislation of this nature requires limitations and a
more specialized approach
The expression ldquoprivate armyrdquo was used in the Ontario legislative debate in 1939
Theoretically at least private armies could be created through the use of the ldquoguardrdquo
appointing authority by the many individuals who are authorized to appoint guards
pursuant to the PWPA This authority was apparently in response to the Federal
18
Governmentrsquos refusal to assume through the Defence Department the responsibility of
guarding utilities and industries essential to the war effort While such a result might not
have been contemplated in a parliamentary democracy it is clearly unwise to leave such
a possibility open
Section 3 of the PWPA provides in part that a guard or a peace officer
(a) may require any person entering or attempting to enter any public work or any approach thereto to furnish his or her name and addresshellipand to state the purpose for which he or she desires to enter the public work in writing or otherwise
The primary problem I see with this section is the vagueness of the term ldquoapproach
theretordquo An approach could begin at a considerable distance from the public work
Section 6(b) also provides for the making of regulations ldquodefining the areas that
constitute approaches to public works either generally or with regard to a particular
public workrdquo
In addition s 3(b) of the PWPA provides that a guard or peace officer ldquomay search
without warrant any person entering or attempting to enter a public workrdquo This section
does not permit any person to abandon any attempt to enter a public work in order to
avoid being subjected to a warrantless search Such conduct is adopted by persons who
decide not to enter a secured courthouse in order to avoid a warrantless search
Section 4 provides that for the purposes of the PWPA the statement under oath made by
persons engaged in the operation of a public work ldquoas to the boundaries of the public
work is conclusive evidence thereofrdquo Section 4 should be considered with s 5(1) which
provides that ldquoevery person found upon a public work or any approach thereto without
lawful authority the proof whereof lies on him or her is guilty of an offencehellip(emphasis
19
added)rdquo The provision in s 4 that ldquothe statement under oathhellipis conclusive evidence
thereofrdquo appears to remove from a courtrsquos consideration what could be a legitimate
dispute as to the boundaries of a public work or the approach thereto Furthermore the
apparent reversal of the onus of proof regarding lawful authority to be found in a public
work or an approach found in s 5 is also troublesome from a policy and legal point of
view
Accordingly if utilized to the extreme many government officials could appoint many
private armies to restrict access to many (in fact any) public places where the mere
statement under oath by the private guard of the boundaries of the areas under restricted
access is conclusive proof thereof Such potential for abuse is beyond troubling to say
the least
B Review of other Public Reports
As is evident from the foregoing discussion many issues arise regarding the operation of
the PWPA in todayrsquos context These considerations and others also formed the basis of
concerns raised in public reports which I was asked to review
1 Reports of the Canadian Civil Liberties Association
The CCLA preliminary G20 report26 dealt with most of the police related events that
occurred in Toronto during the G20 conference during the weekend of June 26th and 27th
2010 I will only make reference to a few portions of the report that deal with the Terms
of Reference
26 Canadian Civil Liberties Association A Breach of the Peace ndash A Preliminary Report of Observations During the 2010 G20 Summit June 29 2010 online Canadian Civil Liberties Association lthttpcclaorgwordpresswp-contentuploads201006CCLA-Report-A-Breach-of-the-Peace-Preliminary-report-updated-July-8pdfgt
20
The report of the CCLA called for the repeal or significant amendment to the PWPA ldquoto
meet basic constitutional standardsrdquo27 The CCLA ldquosuggests that the broad police powers
granted under the Act are inconsistent with current Charter requirementsrdquo28
I agree with the observation of the CCLA that the provisions of the PWPA led to a ldquolack
of clarity as to the scope of the search and seizure powersrdquo29 which created many
difficulties and conflicts that probably could have been avoided I would also certainly
agree with a conclusory comment in this preliminary report that ldquoit is the duty of police
officers to act with fairness and equanimity toward all citizens in accordance with the law
of the country The presumption of innocence and the protection against arbitrary arrests
and detention are at the core of a commitment to justicerdquo30
The CCLA in partnership with the National Union of Public Employees organized
public hearings for two days in Toronto and one day in Montreal in November of 2010
which they referred to as a Citizens Inquiry The Citizens Inquiry heard from 63 members
of the public who had witnessed policing incidents or had been detained Several lawyers
and academics also participated in the hearing and offered commentary on the events of
the G20 from a legal or policing perspective including issues related to the PWPA A
report of the hearings titled ldquoG20 Toronto Breach of the Peace Public Hearingsrdquo was
released on February 28 2011 which also referred to the PWPA31
27 Ibid p 2228 Ibid p 929 Ibid p 1230 Ibid p 2131 Canadian Civil Liberties Association and the National Union of Public and General Employees G20 Toronto Breach of the Peace Public Hearings February 2011 online Canadian Civil Liberties Association lthttpcclaorgwordpresswp-contentuploads201102Breach-of-the-Peace-Final-Reportpdfgt
21
2 The Ontario Ombudsman Report
The Ontario Ombudsman commenced an investigation after receiving complaints relating
to a variety of issues concerning the G20 The Marin Report recognized that ldquotypically
international summits attract protests and protests can turn violent and even deadlyrdquo32
The report therefore does not quarrel with the requirement that a high level of security is
required for such events
The report in my view accurately describes the PWPA as ldquounique in Canada in terms of
the breadth of its reach and the powers it confershellipno other Canadian statute defining
lsquopublic worksrsquo contains provisions similar to those found in Ontariorsquos Actrdquo33
32 Ontario Ombudsman report Investigation into The Ministry of Community Safety and Correctional Servicesrsquo Conduct in Relation to Ontario Regulation 23310 under the Public Works Protection Act ldquoCaught in the Actrdquo by Andreacute Marin (Toronto Ombudsman of Ontario December 2010) online Ombudsman of Ontario lthttpwwwombudsmanoncamedia157555g20final1-enpdfgt (ldquoMarin Reportrdquo) at para 733 Ibid at para 97
22
SECTION 4 POWERS OF THE POLICE
Pursuant to the Terms of Reference I have been asked to consider for future purposes
whether the powers given to peace officers and guards under the PWPA are necessary to
protect public works secure intergovernmental conferences or for any other purposes
To answer that question it is necessary to assess whether the current common law and
statutory regime provide the police with sufficient powers to perform these vital services
A Common Law Powers and Powers Pursuant to Police Services Acts
The police have extensive common law powers that can be used in protecting and
securing intergovernmental conferences and in protecting public works It is necessary to
examine those powers in order to assess whether and what if any additional powers are
needed such as those provided by the PWPA
Of particular assistance in this regard is R v Knowlton34 where the Supreme Court of
Canada considered whether the powers possessed by peace officers at common law and
statute in securing an area for the protection of a foreign dignitary were lawful The
Supreme Court of Canada held that in order for the exercise of peace officer powers to be
lawful the powers must satisfy the two step test set out in R v Waterfield35 First the
power must be in furtherance of a lawful duty Traditional common law peace officer
duties include the preservation of the peace and the prevention of crime These common
law police duties amongst others are now statutorily enshrined in s 42(1) of Ontariorsquos
Police Services Act (and other provincial police services acts)36 The second part of the
test requires an evaluation of whether the conduct of the peace officer was ldquojustifiedrdquo To
34 [1974] SCR 443 [ldquoKnowltonrdquo]35 See for example R v Dedman [1985] 2 SCR 236 RSO 1990 c P15
23
do so one applies the standard of what is reasonably necessary in light of the totality of
the circumstances In evaluating whether the conduct of the peace officer was justified it
is important to consider ldquothe duty being performed the extent to which some interference
with individual liberty is necessary in the performance of that duty the importance of the
performance of the duty to the public good the nature of the liberty being interfered with
and the nature and extent of the interferencerdquo37
In Knowlton police in Edmonton cordoned off an area as part of the security
arrangements for the visit of Premier Kosygin of the USSR Premier Kosygin had been
assaulted in Ottawa a few days prior to his visit to Edmonton Knowlton entered the
secured area questioning the power of the peace officer to prevent his entry He was
arrested without a warrant and charged with obstructing a peace officer in the execution
of his duties Knowlton argued that the peace officer did not have the power to prevent
his entry and was not acting in the execution of his duty
The Supreme Court of Canada emphasized the heightened importance of security when
there are visiting foreign dignitaries38
It is notorious and of common knowledge that the official visit of the head of state or high rank dignitary of a foreign country friendly as either may be is an event that frequently engenders a real or apprehended threat to the preservation of peace and that calls therefore for the adoption of proper and reasonable security measures in and by the host countryhellipThe restriction of the right of free access of the public to public streetshellipwas one of the steps--not an unusual one--which police authorities considered and adopted as necessary for the attainment of the purpose aforesaid In my opinion such conduct of the police was clearly falling within the general scope of the duties imposed upon them
37 R v Mann [2004] 3 SCR 59 at 7938 Supra note 34 at 447-448
24
In addressing the first part of the Waterfield test the Court referenced provisions of the
Alberta Police Act and the Criminal Code and concluded that the conduct of the peace
officers fell within the general scope of the duties imposed upon them for example
preservation of the peace and prevention of crime39
According to the principles which for the preservation of peace and prevention of crime underlie the provisions of s 30 amongst others of the Criminal Code these official authorities were not only entitled but in duty bound as peace officers to prevent a renewal of a like criminal assault on the person of Premier Kosygin during his official visit in Canada In this respect they had a specific and binding obligation to take proper and reasonable steps The restriction of the right of free access of the public to public streets at the strategic point mentioned above was one of the steps--not an unusual one--which police authorities considered and adopted as necessary for the attainment of the purpose aforesaid In my opinion such conduct of the police was clearly falling within the general scope of the duties imposed upon them
In analyzing the second step of the Waterfield test the Court concluded that there was no
evidence indicating the police officers resorted to an unjustifiable use of the powers
associated with the duties imposed on them
The Court in Knowlton recognized broad police powers to cordon off areas as part of the
security arrangements involving internationally protected persons In addition the Court
found that the warrantless arrest in that case was not an unjustifiable or unreasonable use
of powers associated with the police duties to preserve the peace order public safety and
to enforce the law and prevent crime Finally the Court found that peace officers were
duty bound ldquoto prevent a renewal of a like criminal assault on the person of Premier
Kosygin during his official visit in Canadardquo40 Furthermore it stated the closing of public
39 Ibid 40 Ibid at 447
25
streets ldquowas one of the steps -- not an unusual one -- which police authorities considered
and adopted as necessaryrdquo41
The Knowlton decision clearly acknowledged that the police had the duty and authority to
establish and enforce a secured area to protect a foreign dignitary In order to carry out
these duties the police may do what is reasonably necessary in light of the totality of the
circumstances
Though Knowlton was decided prior to the enactment of the Canadian Charter of Rights
and Freedoms (the ldquoCharterrdquo) this does not in my view affect the clear statement by the
Supreme Court of Canada regarding the duty of the police under the common law and the
Alberta Police Act to provide this security While the facts of Knowlton were quite
compelling in relation to the obvious need to provide adequate security for Premier
Kosygin the decision is equally important authority regarding the general responsibilities
of the police at common law and statute in relation to the preservation of the peace
B Other Statutory Powers
1 Criminal Code
Some specific powers are provided to peace officers pursuant to the Criminal Code42
Section 31 gives peace officers the power to arrest an individual for breach of the peace
Peace officers can arrest those committing the breach of the peace or those who on
reasonable grounds heshe believe are about to join in or renew the breach of the peace
Peace officers also have powers at their disposal under ss 63-69 of the Criminal Code to
deal with the offences of unlawful assembly and riots
41 Ibid at 447-448 42 RSC 1985 c C-46
26
2 Trespass to Property Act
The Ontario Trespass to Property Act43 is a potential source of police power to arrest
without warrant those who are unlawfully on certain premises or who were recently
unlawfully on the premises and refuse to give their name and address44 This statute
deals with illegal entry into both private and public property by creating the offence of
trespass for those who without the express permission of the occupier enter on to
premises or engage in an activity on the premises when it is prohibited by the statute45
Though this statute is primarily used by private property owners to keep unwanted people
off of their property it has also been invoked by the Speaker of the House46 and by the
City of Toronto47 It must be noted however that using the Trespass to Property Act in
relation to removing individuals from ldquopublicrdquo places may raise Charter issues48
3 Foreign Missions and International Organizations Act
The RCMP as peace officers have the general duty to preserve the peace and prevent
crime and offences as set out in s 18 of the Royal Canadian Mounted Police Act49
Additional duties found in s 17 of the Royal Canadian Mounted Police Regulations
198850 include the protection of ldquointernationally protected personsrdquo as defined in s 2 of
the Criminal Code Internationally protected persons include heads of state and their
43 RSO 1990 c T2144 Ibid ss 9(1) 1045 Ibid s 2(1)46R v Behrens [2004] OJ No 5135 (CJ) The Court held that the issue of the trespass notices fell under the Speakerrsquos parliamentary privilege and were not reviewable even on the basis of a Charter argument47R v Semple [2004] OJ No 2137 (CJ)48 In R v Semple the defendants were charged under the Ontario Trespass to Property Act for entering the grounds of Toronto City Hall after being banned from doing so In the end the Court held that the defendantsrsquo peaceful entry onto the grounds was an expression as per s 2(b) of the Charter Torontorsquos notice under the Act infringed on this freedom and in these circumstances it could not be justified under s 1 of the Charter 49 RSC 1985 c R-1050 SOR88-361
27
family members The RCMPrsquos duty to protect internationally protected persons is also
found in s 6(1) of the Security Offences Act51
In addition Canada is a signatory of the United Nations Convention on the Prevention
and Punishment of Crimes against Internationally Protected Persons including
Diplomatic Agents52 This Convention provides that the Government of Canada must
protect visiting heads of state or government foreign ministers representatives or
officials of a state or any official or other agent of an international organization of an
intergovernmental character and the family members that accompany him or her The
RCMP has the responsibility to carry out these security measures
Pursuant to s 101(1) of the FMIOA ldquoThe Royal Canadian Mounted Police has the
primary responsibility to ensure the security for the proper functioning of any
intergovernmental conference in which two or more states participate that is attended by
persons granted privileges and immunities under this Act and to which an order made or
continued under this Act appliesrdquo
The powers to carry out this mandate are found in s 101(2) of the FMIOA ldquothe Royal
Canadian Mounted Police may take appropriate measures including controlling limiting
or prohibiting access to any area to the extent and in a manner that is reasonable in the
circumstancesrdquo It is noteworthy that the FMIOA has legislated the same powers
provided to the police under common law and statute
In order to trigger the RCMP powers described in s 101 the Governor in Council on the
51 RSC 1985 c S-752 UNGA Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons including Diplomatic Agents 20 February 1977 UN Doc I-15410
28
recommendation of the Minister of Foreign Affairs and pursuant to s 5 of the FMIOA
made the G8 Summit Privileges and Immunities Order 201053 on December 10 2009
This order was repealed and a subsequent order54 was made on January 13 2010 A
similar order55 for the G20 Summit was made on March 11 201056
Therefore during the G20 the RCMP had the specific statutory power to limit or
prohibit access to any area and to any extent as long as the measures were appropriate
and done in a manner that was reasonable in the circumstances ldquoThe RCMP may secure
the perimeter of the security zone on land with fencing and restrict access to this zone
through the use of checkpoints and other measuresrdquo57
Though not invoked during the G20 s 101(4) of the FMIOA provides that arrangements
can be entered into with a province concerning the responsibilities of members of the
RCMP and members of the provincial and municipal police forces with respect to
ensuring the security for the proper functioning of an intergovernmental conference No
information was provided to me as to why such an arrangement was not entered into for
the G20
These intergovernmental security provisions of the FMIOA were enacted just prior to the
G8 being held in Kananaskis Alberta in 2002 In light of violent protests at international
events and the 911 terrorist attacks in the United States the Federal Government
53 SOR2009-33654 SOR2010-1355 SOR2010-6256 Supra note 17 ldquoUpon such an Order being made the RCMP in co-operation and collaboration with other police forces becomes impressed with the primary responsibility of ensuring not only the protection of the IPPs but also ensuring lsquosecurity for the proper functioningrsquo of the intergovernmental conference To that end the FMIOA provides that the lsquoappropriate measures including controlling limiting or prohibiting access to any area to the extent and in a manner that is reasonable in the circumstancesrsquo may be takenrdquo57 Ibid
29
considered it timely ldquoto clarify in statute the present common law authority for police to
provide security and protection for high profile international eventsrdquo58 At such events it
was intended that ldquothe RCMP is the lead to make sure that security is providedrdquo59
Given that it was clearly the intention of the Federal Government to have the RCMP as
the lead police force at these international events consideration should be given to
expand the use of the FMIOA to cover all large scale international events such as the
Olympics the Pan American Games and international trade fairs as these events are
routinely attended by heads of state and senior government officials Most recently
Vancouver held the 2010 Olympic and Paralympic Winter Games60 Though federal and
municipal legislation were passed to assist in securing the Games expansion and
application of the FMIOA would have been a better approach The RCMP as the national
police force ought to be in charge pursuant to their authority under the FMIOA
4 Emergency Legislation
Through my consultations with the parties listed in Appendix 2 I heard that while we are
not in a time of war as in 1939 when the PWPA was enacted we live in an age of
international and local terrorism threats Our democratic society must be vigilant in
58 Canada House of Commons Debates 37th Parl 1st Sess No 93 (5 October 2001) at 100059 Canada House of Commons Standing Committee on Public Safety and National Security 40th Parl 3rd
Sess Evidence (25 October 2010)60 In anticipation of this event the Governor General in Council on the recommendation of the Minister of Transport pursuant to the Aeronautics Act (RSC 1985 c A-2) and the Canadian Air Transport Security Authority Act (SC 2002 c 9 s 2) passed the Vancouver 2010 Aviation Security Regulations (SOR2009-298) The purpose of the regulations was to enhance aviation security during the Games The Regulation provided for extra security and extra authorized means to conduct screenings In addition the Vancouver City Council passed the very lengthy By-law No 9962 known as the ldquoVancouver 2010 Olympic and Paralympic Winter Games By-Lawrdquo Specific security measures to be employed at a city live site (described thoroughly in a Schedule to the By-Law) that were enabled by this By-Law included The installation and monitoring of airport style and other security measures including magnetometers and X-ray machines the installation and monitoring of closed circuit television cameras the searching of any person who wished to enter on to a city live site and any bag luggage or other container carried by such person and the prohibiting of access to or removal from a city live site any person who refused to submit to a search
30
maintaining a proper level of security while recognizing that democratic values and
security issues can conflict where public order is at issue It is important to highlight that
provincial legislation exists dealing with both terrorism threats and emergency situations
I have been informed that federal and provincial counter-terrorism plans exist that
address preventing and responding to acts of terrorism
The Police Services Act regulations mandate police forces to establish procedures
consistent with federal and provincial counter-terrorism plans61 and to have policies with
respect to counter-terrorism62 In addition the Emergency Management and Civil
Protection Act allows for orders to be made in situations specifically designated an
ldquoemergencyrdquo63 by the Lieutenant Governor in Council or the Premier that regulate or
prohibit travel and movement to from or within any specified area64 Therefore the
PWPA is not needed to deal with these emergency situations as specific more recent
emergency legislation is in place for that very purpose
C Gaps in Canadian Police Powers
The Ministry of Community Safety and Correctional Services provided me with an
interesting article published in 2010 entitled ldquoThe Gap in Canadian Police Powers
61 Adequacy and Effectiveness of Police Services O Reg 399 s 2862 Ibid s 2963 Section 1 of the Emergency Management and Civil Protection Act defines an ldquoemergencyrdquo as ldquoemergencyrdquo means a situation or an impending situation that constitutes a danger of major proportions that could result in serious harm to persons or substantial damage to property and that is caused by the forces of nature a disease or other health risk an accident or an act whether intentional or otherwise (ldquosituation drsquourgencerdquo)64 RSO 1990 c E9 s 702(4)
31
Canada needs lsquoPublic Order Policingrsquo Legislationrdquo and co-authored by Wesley Pue and
Robert Diab65
This article was prompted by the debate over the cost nature and extent of security to be
employed at the Vancouver 2010 Winter Olympics The authors criticized the fact that
policing authorities in Canada ldquolack specific statutory authorization to take measures
commonly thought necessary to their missionrdquo66 These measures included security
fences in public areas designated protest areas restricted access to public space police
surveillance and searches without cause
The authors recognize that such powers may be necessary but note that ldquono legislature
has ever expressly conferred such powers on policing authorities outside the context of
international intergovernmental conferences Nor does the common law accord such
powers to state officials on its ownrdquo67 I respectfully disagree with this latter statement
It is my view the police have powers pursuant to the common law and statute as I have
discussed in the preceding section
The authors referred to R v Knowlton68 which I have previously discussed While the
authors give Knowlton a very narrow interpretation stating that ldquoits binding principle is a
good deal narrower than the words taken out of context might suggestrdquo69 I however am
of the view that the decision supports the proposition that police have a broad range of
65 Wesley Pue and Robert Diab ldquoThe Gap In Canadian Police Powers Canada Needs lsquoPublic Order Policingrsquo Legislationrdquo (2010) 28 Windsor Rev Legal Soc Issues 87 Wesley Pue is a professor of legal history at the University of British Columbia and Robert Diab is a PhD candidate at the UBC Faculty of Law66 Ibid p 8867 Ibid68 Supra note 3469 Supra note 65 p 92
32
responsibilities with deep historical roots in the common law and codified in statute a
position shared by the Federal Government when it introduced amendments to the
FMIOA The actions of the police in Knowlton were necessarily incidental to their
common law police duties and powers
The authors conclude that this ldquoauthority of police to create zones of exclusion either as
an incident of the general and ancient duties of constableshelliphas never been established in
the courtsrdquo70 I am of the view however that the role of the police in establishing
security zones relating to a crime a serious accident or other emergency is a routine and
well-accepted use of police powers pursuant to their common law and statutory duties I
am not suggesting that this common law authority permits the police to establish security
zones ldquofor the proper functioning of any intergovernmental conference in which two or
more states participaterdquo71 larger than necessary to fulfill their purpose The FMIOA as
amended in 2002 provides the RCMP with ldquoprimary responsibility to ensure the security
for the proper functioning of the intergovernmental conferencerdquo72 It is interesting
however that when the Federal Government was enacting this specific authority the
legislative debates indicated that the government was merely clarifying ldquoin statute the
present common law authority for police to provide security and protection for high
profile international eventsrdquo73
Security perimeters are routinely erected by police in the context of the commission of a
crime motor vehicle and other accidents as well as the Santa Claus parade and other
70 Ibid p 9671 Supra note 8 s 101(1)72 Ibid73 Supra note 58
33
parades It would in my view be quite impractical and unnecessary to legislate an
extensive code of police powers given their common law and statutory responsibilities to
generally maintain public order It is not advisable in my opinion to be prescriptive in
any way regarding what actions the police can take since they must assess what the
situation warrants while at the same time considering individual rights and freedoms
The details of any police response to an emergency must be tailored to the exigencies
related to the situation
The police clearly have common law and statutory authority to conduct warrantless
searches in specific situations (ldquoin exigent circumstancesrdquo)74 However when
warrantless searches must be carried out on a regular routine basis the police are acting
more like full time security guards and there should be specific statutory authority
provided to give such powers
I certainly accept the general proposition the authors assert that the mobility rights of
citizens should not be unreasonably or unfairly dealt with However one only need be
aware of the massive amount of construction taking place on the streets of Toronto as this
Report is being written to appreciate that it is not always reasonable to expect that ldquothe
rights of businesses homeowners and ordinary citizens to go about their routine
activities without interruptionrdquo75 will go unhindered While generally desirable it cannot
be legally guaranteed At the same time the authors do concede that ldquoimportant as they
74 Supra note 42 s 4871175 Supra note 65 p 89
34
are the rights of assembly movement and protest are not unqualified They can ndash and
should ndash be balanced against other important public needsrdquo76
In my view public policing at times requires innovation as it often benefits from
creative problem solving If police abuse their common law powers related to ldquopublic
order policingrdquo they are accountable to a multiplicity of authorities and the rule of law
most particularly the Charter The legal rights outlined in the Charter such as ldquothe
principles of fundamental justicerdquo77 security ldquoagainst unreasonable search and seizurerdquo78
and ldquothe right not to be arbitrarily detained or imprisonedrdquo79 are described very
generally However they were chosen deliberately as it was recognized that in each case
there is an inherent tension between imposing security measures and fundamental rights
and freedoms Determining which is paramount will be based on the facts of each case
76 Ibid p 9177 Canadian Charter of Rights and Freedoms s 7 Part I of the Constitution Act 1982 being Schedule B to the Canada Act 1982 (UK) 1982 c 1178 Ibid s 879 Ibid s 9
35
SECTION 5 LEGAL ANALYSIS OF THE PUBLIC WORKS PROTECTION ACT
A Legal Analysis of the Legislation
Many stakeholders have questioned the constitutional validity of the PWPA and O Reg
23310 The Ontario Ombudsman seriously questioned whether O Reg 23310 could
pass ldquoconstitutional musterrdquo80 The CCLA suggested that the broad police powers
granted under the PWPA were inconsistent with the Charter81
To the same effect were comments made by Premier Dalton McGuinty who described
the PWPA as ldquoan archaic law that was used to undermine Torontoniansrsquo civil rights
during the G20rdquo82 He elaborated83
The issue is whether itrsquos appropriate given our present-day values and given an old law which I am confident doesnrsquot strike the balance that you and I would want today in terms of public safety and individual freedom of expressionhellipWhen you start talking about civil rights individual freedoms yoursquore talking about those things that in fact define us as a free and democratic societyhellipItrsquos something that is real and meaningful and important to all of us
The Terms of Reference for this Review do not require that I conduct a constitutional
analysis of the PWPA I have however been asked to consider areas for reform and if
appropriate make specific recommendations for amendment or repeal This does require
that I therefore consider whether the legislation may be vulnerable to constitutional
challenge
Section 2(b) of the Charter guarantees everyone the fundamental freedom of expression
The definition of ldquoexpressionrdquo has been interpreted broadly ldquoActivity is expressive if it
80 Supra note 32 at para 23381 Supra note 26 p 982 Robert Benzie and Rob Ferguson ldquoMcGuinty shifts focus to fixing G20 lawrdquo Toronto Star (10 December 2010) online thestarcom lthttpwwwthestarcomnewscanadaarticle905436--mcguinty-shifts-focus-to-fixing-g20-lawgt 83 Ibid
36
attempts to convey meaningrdquo84 While freedom of expression is not absolute there is
very little that is not considered expression However expression that advocates violence
is not protected under s 2(b)85
The Supreme Court of Canada in Committee for the Commonwealth of Canada v
Canada held that s 2(b) ldquodoes not encompass the right to use any and all government
property for purposes of disseminating onersquos views on public matters but I have no doubt
that it does include the right to use for that purpose streets and parks which are dedicated
to the use of the public subject no doubt to reasonable regulation to ensure their
continued use for the purposes to which they are dedicatedrdquo86 It seems clear that
protesting in public streets is a form of expression protected by s 2(b) Protesting at an
intergovernmental conference is clearly expressive in nature
In challenges alleging that a statute contravenes s 2(b) of the Charter a court would
examine whether the purpose or effect of a law contravenes section 2(b)87 There is no
reason to suggest that the purpose of the PWPA was to infringe the freedom of
expression The purpose of the PWPA is to protect important public infrastructures A
court would then have to consider whether the effect of the PWPA may have resulted in
an infringement of freedom of expression
O Reg 23310 defined significant portions of downtown Toronto as a ldquopublic workrdquo
Section 3(c) of the PWPA allows peace officers to refuse entry into public works which
therefore limits the areas in which protesters could express themselves By creating the
84 Irwin Toy Ltd v Queacutebec (Attorney General) [1989] 1 SCR 927 at 96885 Ibid at 97086 [1991] 1 SCR 139 at 165-16687 Peter Hogg Constitutional Law of Canada loose-leaf (consulted on 7 January 2011) 5th ed (Toronto Thomson Reuters Canada Limited 2007) at 43-6
37
relatively large security perimeter designated by the regulation individuals may allege
they were not permitted to communicate directly with those they were protesting against
Furthermore individuals could not communicate in public places such as public streets
where the right to freedom of expression has previously been found to exist88
Commissioner Ted Hughes completed an interim report following a public hearing into
the complaints regarding events that took place with respect to the Asia Pacific Economic
Cooperation (APEC) Conference in Vancouver British Columbia in November 1997
Commissioner Hughes recommended that generous opportunity should be afforded to
peaceful protesters to be seen in their protest activities by guests at the event89
Section 7 of the Charter provides that ldquoEveryone has the right to life liberty and security
of the person and the right not to be deprived thereof except in accordance with the
principles of fundamental justicerdquo The PWPA raises issues regarding the liberty and
security of the person in providing for warrantless searches and stopping for
identification Furthermore vague laws offend two fundamental values of our legal
system90 Firstly individuals are not provided with sufficient guidance as to what
behaviour a law prohibits Secondly those in charge of enforcing the law are not
provided with clear guidance as to how to enforce it A vague law can lead to inconsistent
and arbitrary enforcement91
88 Supra note 86 89 Canada Commission for Public Complaints Against the RCMP APEC ndash Commission Interim Report (31 July 2001) at s 3111 (Commissioner Ted Hughes QC) online Commission for Public Complaints Against the RCMP lthttpwwwcpc-cppgccaprrrepphrapecapec-31-engaspxgt90 Supra note 87 at 47-60 91 ldquoA vague provision does not provide an adequate basis for legal debate that is for reaching a conclusion as to its meaning by reasoned analysis applying legal criteria It does not sufficiently delineate any area of risk and thus can provide neither fair notice to the citizen nor a limitation of enforcement discretion Such
38
As described by Professor Hogg92
The requirement that any limit on rights be prescribed by law reflects two values that are basic to constitutionalism or the rule of law First in order to preclude arbitrary and discriminatory action by government officials all official action in derogation of rights must be authorized by law Secondly citizens must have reasonable opportunity to know what is prohibited so that they can act accordingly Both these values are satisfied by a law that fulfils two requirements (1) the law must be adequately accessible to the public and (2) the law must be formulated with sufficient precision to enable people to regulate their conduct by it and to provide guidance to those who apply the law
As I stated earlier the phrase ldquoany approach theretordquo contained in s 3(a) of the PWPA is
potentially vague No criteria are provided to assist in determining when one is on ldquoany
approach theretordquo A phrase such as ldquoany approach theretordquo is subject to many potential
interpretations It is arguable that this language does not provide reasonable guidance for
individuals to obey the law and for the law to be consistently enforced
Section 8 of the Charter provides that ldquoEveryone has the right to be secure against
unreasonable search or seizurerdquo A warrantless search or seizure is only reasonable if the
search was authorized by law the law itself is reasonable and the manner in which the
search carried out was reasonable93 The fact that no reasonable or probable suspicions
are needed to carry out a search pursuant to s 3(b) of the PWPA raises some issues The
only prerequisite to such a search is that the person or vehicle being subjected to a search
is entering or attempting to enter a public work
a provision is not intelligible to use the terminology of previous decisions of this Court and therefore it fails to give sufficient indications that could fuel a legal debaterdquo (R v Nova Scotia Pharmaceutical Society [1992] 2 SCR 606 at 639-640) 92 Supra note 87 at 38-1293 R v Nolet [2010] SCJ No 24 at para 21
39
Whether the PWPArsquos s 3(b) authority to undertake warrantless searches is ldquoreasonablerdquo
depends on the reasonableness of the impact on the subject of the search ldquoThe
individuals reasonable expectation of privacy must of course be balanced against the
public interest in effective law enforcementrdquo94 It is harder to justify a warrantless search
where the reasonable expectation of privacy is higher For example interference with
bodily integrity will raise the standard of reasonableness Conversely in situations where
people expect to have a lower level of privacy the standard to prove reasonableness is
lower
One rightfully has some expectation of privacy when in public but it does not rise to the
level of privacy that one expects in onersquos home The expectation of privacy further
decreases when one attempts to enter a ldquopublic workrdquo especially in the context of a
secured barrier to an intergovernmental conference
Section 9 of the Charter provides that ldquoEveryone has the right not to be arbitrarily
detained or imprisonedrdquo95 Under s 3(a) of the PWPA a person entering or attempting to
enter or approach a public work must provide his or her name and address and state the
purpose for which he or she desires to enter the public work In order for a guard or
peace officer to carry out this duty the guard or peace officer may ldquostoprdquo the person from
further approaching or entering the public work and the person is not permitted under the
statute to decide not to enter By so doing it is arguable the guard or peace officer has
assumed control over the movement of the individual by a demand or direction The
94 R v Rao [1984] OJ No 3180 at para 79 (CA)95 ldquoDetention under s 9hellipof the Charter refers to a suspension of the individualrsquos liberty interest by a significant physical or psychological restraint Psychological detention is established either where the individual has a legal obligation to comply with the restrictive request or demand or a reasonable person would conclude by reason of the state conduct that he or she had no choice but to complyrdquo (R v Grant [2009] SCJ No 32 at para 44)
40
PWPA provides for a significant legal consequence if the demand or direction is not
followed since ldquoEvery person who neglects or refuses to comply with a request or
direction made under this Act by a guard or peace officer and every person found upon a
public work or any approach thereto without lawful authority the proof whereof lies on
him or her is guilty of an offence and on conviction is liable to a fine of not more than
$500 or to imprisonment for a term of not more than two months or to bothrdquo96
Pursuant to s 3(b) of the PWPA a guard or peace officer may search any person entering
or attempting to enter a public work These searches would necessitate the detention of a
person If a guard or peace officer performs such a search he or she has taken control
over the movement of the person by a demand or direction The same serious legal
consequence results from failing to obey this demand or direction as that which results
from failing to obey the demand or direction pursuant to s 3(a) of the PWPA As a
result ldquodetentionsrdquo could occur pursuant to both s 3(a) and s 3(b) of the PWPA
The question that would need to be addressed in any challenge to the PWPA is whether
the detentions permitted by the PWPA are arbitrary in nature The use of the term ldquoany
approach theretordquo is vague and imprecise A person could be deemed to be on ldquoany
approach theretordquo a great distance from the entrance of a public work and their detention
might very well be arbitrary In addition the fact that the guards and peace officers
determine the boundaries of the ldquoapproachesrdquo which cannot be contested seems
arbitrary as well as who they chose to search
96 It should be noted that not all communications with state authorities and police officers will amount to a detention The question is whether a person may reasonably believe that he or she is free to refuse to comply
41
Section 11(d) of the Charter provides that ldquoAny person charged with an offence has the
right to be presumed innocent until proven guilty according to law in a fair and public
hearing by an independent and impartial tribunalrdquo This requires that the Crown have the
burden of proving the guilt of an individual charged with an offence97 Provisions that
place the burden on the accused to disprove on the balance of probabilities an essential
element of an offence raises s 11(d) concerns because convictions would be possible
even if reasonable doubt existed98 The presumption of innocence is not only infringed
upon by a requirement that an accused disprove an essential element of an offence but
also any requirement on an accused to prove a fact on the balance of probabilities to
avoid conviction
Section 5(1) of the PWPA states that ldquoEvery person who neglects or refuses to comply
with a request or direction made under this Act by a guard or peace officer and every
person found upon a public work or any approach thereto without lawful authority the
proof whereof lies on him or her is guilty of an offence and on conviction is liable to a
fine of not more than $500 or to imprisonment for a term of not more than two months or
to bothrdquo For the offence of being found upon a public work or on any approach to a
public work without lawful authority the burden of proof has been ldquoshiftedrdquo from the
Crown to the accused to prove lawful authority
As the foregoing analysis reveals there are certainly many concerns that arise when one
places the PWPA under the lens of the Charter However the rights and freedoms
provided by the Charter are not absolute They are ldquosubject only to such reasonable
97 R v Oakes [1986] 1 SCR 10398 Ibid at 132
42
limits prescribed by law as can be demonstrably justified in a free and democratic
societyrdquo99
In assessing whether a law which infringes the Charter is saved by s 1 a court examines
both the object of the law and the measures taken to achieve that objective A lawrsquos
objective achieves the status of being sufficiently important to justify overriding a
Charter right only when it is consistent with the values of a free and democratic society
The objective must relate to pressing and substantial concerns and not concerns that are
trivial and must be focussed on ldquothe realization of collective goals of fundamental
importancerdquo100 The measures adopted must be ldquorationally connectedrdquo to the objective of
the law101 The measures ldquoshould impair lsquoas little as possiblersquo the right or freedom in
questionrdquo102 Furthermore there must be ldquoa proportionality between the effects of the
measures which are responsible for limiting the Charter right or freedom and the
objective which has been identified as of lsquosufficient importancersquordquo103
An issue that may affect whether the potential limitation on rights and freedoms of the
PWPA and O Reg 23310 were ldquoprescribed by lawrdquo is whether the regulation was
adequately accessible to the public The Ontario Ombudsman the CCLA and the Ontario
Bar Association (ldquoOBArdquo) all noted a lack of notice regarding O Reg 23310 and its
effects prior to and during the G20 While the text of the regulation was available prior
99 Charter s 1 The Superior Court of Quebec decision of Tremblay v Queacutebec (Attorney General) [2001] JQ No 1504 (CS) involved an interim injunction brought by an applicant who was denied entry into the secured perimeter during the 2001 Summit of the Americas in Queacutebec City The applicant sought an injunction to either eliminate the security barrier or to be given a pass to let him within the secured perimeter Even though the Court held that the erection of the security zone violated the applicantrsquos right to freedom of expression and peaceful assembly The court held that the infringement was ldquodemonstrably justified in a free and democratic societyrdquo100 Supra note 97 at 136101 Ibid at 139102 Ibid103 Ibid
43
to the G20 it was only available on a website not frequently accessed by the public
Since O Reg 23310 was not published in The Ontario Gazette until after it was
revoked it may be that the regulation was not adequately accessible to the public
Reverse onus offences have been found to be ldquorationally connectedrdquo when there is plainly
a rational connection between the proven fact and the fact to be presumed Reverse
onuses have also been upheld when the burden placed on the Crown would be virtually
impossible to meet (such as proving sanity)104 Even if the accused only has the burden
of disproving the fact that heshe did not have lawful authority to be in a public work or
on an approach thereto there may not be a rational connection between the proven fact
and the fact to be presumed
The history of threats and violence at previous intergovernmental conferences
demonstrated that the protection of G20 participants was a pressing and substantial
concern However given the broadness of the PWPA every exercise of it raises the
potential for Charter scrutiny
Recommendation
Given the public policy considerations I have raised regarding the PWPA and Charter
concerns that could arise I recommend that the PWPA be repealed after the Province has
considered potential policy and security gaps as a result of its repeal
B Other uses of the Public Works Protection Act
It appears from my consultations with stakeholder groups that if the PWPA is repealed
104 R v Chaulk [1990] 3 SCR 1303 at 1340
44
there are two areas which may require legislation to provide specific peace officer
powers These two areas are court security and the protection of nuclear power facilities
and other power generating infrastructures
1 Court Security
During my decade as Ontariorsquos Attorney General (1975 to 1985) there were three
murders in provincial courthouses as well as many threats to members of courthouse staff
and others As violent acts in courthouses can be anticipated courtroom security is often
required
Individuals are compelled to go to court for a variety of reasons such as appearing as an
accused as a witness or for jury duty To provide protection to those who work there or
are compelled to attend an adequate level of court security may require a search without
warrant of each and every individual who seeks to enter a courthouse It is not reasonable
to require prior judicial authorization for each search that takes place
The courts have considered the constitutionality of these provisions of the PWPA in
conjunction with section 137 of the Ontario Police Services Act in the context of court
security
Section 137 of the Ontario Police Services Act imposes a responsibility on municipal
police services boards to secure the premises where court proceedings are conducted and
includes
1 Ensuring the security of judges and of persons taking part in or attending proceedings
45
2 During the hours when judges and members of the public are normally present ensuring the security of the premises
3 Ensuring the secure custody of persons in custody who are on or about the premises including persons taken into custody at proceedings
4 Determining appropriate levels of security for the purposes of paragraphs 1 2 and 3
In R v Campanella105 Ms Campanella was attending the John Sopinka Courthouse in
Hamilton At the courthouse there were signs posted stating that those who entered
would be searched for weapons When Ms Campanellarsquos bag was searched marijuana
was found and she was charged with the possession of marijuana She argued that her s
8 Charter protection against unreasonable search and seizure had been violated and the
marijuana discovered during the search should therefore be excluded as evidence The
trial judge and the summary convictions appeal court rejected the section 8 Charter
argument and the appellant appealed to the Ontario Court of Appeal
The Ontario Court of Appeal agreed that ldquogiven the importance of the government
objective and the context in which these searches take place it is reasonable to authorize
warrantless searches of those entering courthouse facilitiesrdquo106 The Court stated ldquothe
only effective way to diminish the risk in a large courthouse is to subject everyone
without prior security clearance to some kind of inspection I can see no other feasible
means of achieving the aimrdquo107
The Court also pointed out the concern relating to the erosion of the benefits and
105 [2002] OJ No 5104 (SCJ) affrsquod [2005] OJ No 1345 (CA) [ldquoCampanellardquo]106 R v Campanella [2005] OJ No 1345 at para 17 (CA)107 Ibid at para 19
46
protections conferred by s 8 of the Charter108
I am sensitive to the concern that we should not erode the benefits and protections of s 8 by gradually sanctioning ever-greater intrusions into privacy because of unfounded fears We should not lightly accept that searches in public places are justified solely because people have become used to them and expect them However the record in this case establishes the justification for the kinds of searches carried out in this case
Ultimately the appeal was dismissed and s 137 of the Police Services Act and s 3(b) of
the PWPA) were held to comply with s 8 of the Charter109
In its consultations with me the OBA similarly stated that the existing nature of court
security is necessary and is generally ldquowell toleratedrdquo At the same time however it
submits that the security regime should not be ldquoshoehornedrdquo into the PWPA regime and
that it would be preferable to provide a legislative framework tailored for the specific
security requirements While the PWPA has been relied upon as support for the exercise
of powers by the police in providing court security the OBA submits that the PWPArsquos
ldquosingle security schemerdquo which declares something a ldquopublic workrdquo is an ldquoawkward
blunt instrument in a world where more specialized tools are necessaryrdquo When
warrantless searches are being done on a routine basis it is advisable to have specific
legislation providing peace officers with such power
Recommendation
Court security legislation is currently in place in many jurisdictions across Canada and
contain provisions that permit warrantless searches of persons wanting to access a
108 Ibid at para 25109 The Court in R v SS [2005] OJ No 5002 (SCJ) agreed with the findings and rationale of the Court of Appeal in Campanella
47
courthouse The constitutional validity of such legislation in Manitoba was upheld by that
provincersquos highest court110
Given the ongoing need for warrantless searches at courthouses the Province of Ontario
should consider specific court security legislation in Ontario to support the security
measures in our courthouses if the PWPA is to be repealed taking into consideration the
responsibilities of the municipal police services boards provided in s 137 of the Police
Services Act This legislation should only be passed after proper notice consultation and
legislative debate
2 Power Generating Infrastructures
It is clear from the submissions that I received from representatives of OPG and the
Canadian Nuclear Safety Commission (ldquoCNSCrdquo) that the PWPA currently plays a role in
providing security officers with the powers to secure power generating infrastructures
including the ability to carry firearms and the ability to stop and require identification
from those in proximity to those nuclear plants
Security is of the utmost importance in protecting a nuclear power plant Members of the
public do not need to access a nuclear or similar power facility unless employed at the
facility or carrying out work for the facility111
The security of areas within nuclear power plants is governed by the Nuclear Security
110 R v Lindsay [2004] MJ No 380 (CA) 111 Though the discussion focuses on nuclear power plants I have been informed that other power generating infrastructures use the PWPA to designate their security officers as guards As a result if the PWPA is repealed it will be necessary to broaden the consultations in relation to these other power generating infrastructures
48
Regulations112 Every nuclear power plant must be located within a ldquoprotected areardquo113
This protected area is the area within a fenced perimeter which is alarmed and
continually patrolled This area must be equipped with devices that employ two
independent systems to detect intrusion into the area114 The Nuclear Security
Regulations also provide detailed specifications for the barrier which must enclose the
protected area115 In addition licensees must ldquoidentify all vital areas and implement
physical protection measures ndash including access control and measures designed to delay
unauthorized accessrdquo116
The Nuclear Security Regulations also provide detailed provisions regarding entry into
protected areas No person can ldquoenter a protected area without physical proof of the
recorded authorization of the licenseerdquo117 Further to this on entry into a protected area
ldquothat personrsquos identity shall be verified by two separate personnel identity verification
systems one of which is an access card reader and the other of which is a biometric
personnel identity verification devicerdquo118 Licensees must also ldquoensure that vehicle
portals are used for the entry and exit of land vehicles into and from a protected areardquo119
Physical protection measures are also required to reduce the chance of a forced land
vehicle entry into a protected area120
The power to conduct searches upon entry to a protected area is also provided by the
112 SOR2000-209 113 Ibid s 8114 Ibid s 11(a)(i)115 Ibid s 9116 Ibid s 141117 Ibid s 17(1)118 Ibid s 171119 Ibid s 91(1)120 Ibid s 91(4)
49
Nuclear Security Regulations Signs must be posted that are visible to people about to
enter the protected area stating that they must allow a nuclear security officer (ldquoNSOrdquo) to
ldquosearch them and everything in their possession including any land vehicle for weapons
and explosive substancesrdquo121 In addition when leaving the protected area people must
allow NSOs to ldquosearch them and everything in their possession including any land
vehicle for Category I II or III nuclear materialrdquo122 People are not permitted to enter or
leave a protected area unless these searches are carried out123 The Nuclear Security
Regulations provide for the method of search including ldquoa hand-held scanner a walk-
through scanner or any similar devicerdquo124 In addition if an NSO determines it
necessary a frisk search can be carried out by a person of the same sex125
I have been informed that the area outside of but adjacent to the ldquoprotected areardquo is
referred to as the ldquocontrolled areardquo This area includes roadways and waterways within
the nuclear facilityrsquos property boundaries adjacent to or in close proximity to the nuclear
power plantrsquos protected area and may be generally accessible to the public
As a result of the September 11 2001 terrorist attacks the Nuclear Security Regulations
were amended to require that high security nuclear facilities maintain an on-site armed
Nuclear Response Force (ldquoNRFrdquo)126 The NRF is composed of specialized NSOs
Section 32 of the Nuclear Security Regulations requires the NRF to be capable of making
an effective intervention taking into account the threat
121 Ibid s 27(1)(a)122 Ibid s 27(1)(b)123 Ibid s 27(2)124 Ibid s 27(5)(a)125 Ibid s 27(5)(b)126 Ibid s 32
50
Members of the NRF are mandated by the Nuclear Security Regulations to be ldquotrained in
the use of firearms authorized to carry firearms in Canada and qualified to use themrdquo127
However to satisfy this requirement the NRF resorts to the PWPA since the federal
regulations do not authorize the NRF to carry firearms without a licence However
under s 2(1) of the PWPA NSOs are designated as ldquoguardsrdquo with the powers of a peace
officer most significantly to carry and use firearms without having to be licensed128
Such a designation also enables the OPG to acquire and dispose of firearms
In the consultations I had with the OPG and the CNSC they advised me that NSOs
receive training equivalent to Canadian police standards and that NRF officers receive
training equivalent to federal and provincial police tactical team requirements
Another aspect of the PWPA used to secure nuclear power plants relates to powers
exercised by NSOs in ldquocontrolled areasrdquo The federal regulations do not provide the
NSOs with any power to demand identification within this area However pursuant to
the PWPA as appointed ldquoguardsrdquo the NSOs have the power to demand identity
verification in the controlled area They also have the authority to arrest anyone who
obstructs NSOs in the performance of their duties under the PWPA
In addition to using the PWPA to secure the controlled areas I have been advised by the
OPG that NSOs use powers pursuant to the PWPA to secure areas within 100 metres of a
nuclear facilityrsquos property line immediately adjacent to the controlled area These powers
are exercised under the broad language of the PWPA regarding ldquoapproaches to public
127 Ibid s 1 (on-site nuclear response force definition)128 Section 11707 of the Criminal Code exempts peace officers from licensing requirements for possessing firearms and other prohibited and restricted weapons
51
worksrdquo This is an illustration of the problem with the vagueness of this language in the
legislation As these powers are exercised on public land they could be challenged as a
potential infringement on individual rights and freedoms However I have been advised
that there have been no such incidents to date The need to ensure the security of these
facilities must be taken into the balance
NSOs must be able to monitor and control access to the controlled areas and areas close
to a nuclear power plantrsquos property line This provides for a more secure perimeter
around these facilities They need authority to challenge individuals acting in a suspicious
manner or conducting surveillance of nuclear facilities The OPG has informed me that
areas outside a nuclear facilityrsquos property line immediately adjacent to the controlled
area are still close enough to take advantage of the short distance to conduct intelligence
using high-powered surveillance equipment These nuclear power plants are not located
on isolated islands and are therefore vulnerable Both the Pickering Nuclear Generating
Station and the Darlington Nuclear Generating Station operate within major urban areas
being 30 km and 60 km east of downtown Toronto respectively I am advised that
previous events such as ldquoThe Toronto 18rdquo129 have shown that those intent on targeting
vital infrastructure such as power generating facilities often use reconnaissance and
intelligence gathering as precursor tactics
Recommendation
If the PWPA is to be repealed it is imperative that those who secure our nuclear and
power generating facilities be given the requisite specific legislative powers to do so
129 See for example ldquoLast 2 Toronto 18 accused found guiltyrdquo CBC News (23 June 2010) online cbcca lthttpwwwcbccanewscanadatorontostory20100623toronto-18-verdicthtmlgt
52
The source for these powers should be set out in the federal Nuclear Security
Regulations However if this is not a desired option the Government of Ontario must
consider specific legislation setting out the specific powers required to properly secure
these facilities and the specific location in which these powers can be exercised Such
legislation should not be passed without proper notice consultation and legislative
debate
53
SECTION 6 CONCLUSION
The PWPA was enacted in 1939 to support the war effort At the time the protection of
Ontariorsquos hydroelectric facilities from sabotage was of particular concern Since then the
PWPA has been used to provide the legal foundation for the powers exercised by the
police in providing court security and even more recently by the OPG in securing
nuclear power facilities In June 2010 the PWPA was used to provide powers to secure
intergovernmental conferences The vagueness of the PWPA permits it to be used in
situations when it is arguably not necessary and potentially abusive In my view the
PWPA has been used for purposes beyond its original intent
The time for the PWPA seems to have passed If the Government of Ontario enacts as I
have suggested specific legislation to provide for courthouse security and power
generating infrastructure security it would appear that there is no longer a need for the
PWPA I am also mindful of the existence of counter-terrorism and emergencies
legislation to deal with these situations as they arise
ldquoIn determining the boundaries of police powers caution is required to ensure the proper
balance between preventing excessive intrusions on an individualrsquos liberty and privacy
and enabling the police to do what is reasonably necessary to perform their duties in
protecting the publicrdquo130 The overly broad and vague language of the PWPA does not
strike this required balance with individual rights and freedoms
The late Justice Jackson of the United States Supreme Court stated that every
emergency power once conferred ldquolies about like a loaded weapon ready for the hand of
130 R v Clayton [2007] 2 SCR 725 at 742
54
any authority that can bring forward a plausible claim of an urgent needrdquo131 The need to
protect the public must be balanced with the requirement to preserve fundamental rights
and freedoms
Yet at the same time ldquoCanadians are entitled to demand the best public order policing
possible from their governmentrdquo132 There is no question that we live in a different world
post 911 We live in difficult times with constant threats both domestically and from
abroad The police clearly need to be given adequate powers to carry out their duties
The police use their expertise on a daily basis to assess the powers they require In
instances when they take action that exceeds their powers their actions are examined by
various mandated bodies This process I believe results in the proper balance between
police powers and individual rights and freedoms Therefore any legislation that purports
to grant special police powers must be specific and direct and developed in consultation
with stakeholders and tested through thorough debate in our transparent democratic
system
131 Korematsu v United States 323 US 214 (1944)132 Supra note 26 p 8
55
Governmentrsquos refusal to assume through the Defence Department the responsibility of
guarding utilities and industries essential to the war effort While such a result might not
have been contemplated in a parliamentary democracy it is clearly unwise to leave such
a possibility open
Section 3 of the PWPA provides in part that a guard or a peace officer
(a) may require any person entering or attempting to enter any public work or any approach thereto to furnish his or her name and addresshellipand to state the purpose for which he or she desires to enter the public work in writing or otherwise
The primary problem I see with this section is the vagueness of the term ldquoapproach
theretordquo An approach could begin at a considerable distance from the public work
Section 6(b) also provides for the making of regulations ldquodefining the areas that
constitute approaches to public works either generally or with regard to a particular
public workrdquo
In addition s 3(b) of the PWPA provides that a guard or peace officer ldquomay search
without warrant any person entering or attempting to enter a public workrdquo This section
does not permit any person to abandon any attempt to enter a public work in order to
avoid being subjected to a warrantless search Such conduct is adopted by persons who
decide not to enter a secured courthouse in order to avoid a warrantless search
Section 4 provides that for the purposes of the PWPA the statement under oath made by
persons engaged in the operation of a public work ldquoas to the boundaries of the public
work is conclusive evidence thereofrdquo Section 4 should be considered with s 5(1) which
provides that ldquoevery person found upon a public work or any approach thereto without
lawful authority the proof whereof lies on him or her is guilty of an offencehellip(emphasis
19
added)rdquo The provision in s 4 that ldquothe statement under oathhellipis conclusive evidence
thereofrdquo appears to remove from a courtrsquos consideration what could be a legitimate
dispute as to the boundaries of a public work or the approach thereto Furthermore the
apparent reversal of the onus of proof regarding lawful authority to be found in a public
work or an approach found in s 5 is also troublesome from a policy and legal point of
view
Accordingly if utilized to the extreme many government officials could appoint many
private armies to restrict access to many (in fact any) public places where the mere
statement under oath by the private guard of the boundaries of the areas under restricted
access is conclusive proof thereof Such potential for abuse is beyond troubling to say
the least
B Review of other Public Reports
As is evident from the foregoing discussion many issues arise regarding the operation of
the PWPA in todayrsquos context These considerations and others also formed the basis of
concerns raised in public reports which I was asked to review
1 Reports of the Canadian Civil Liberties Association
The CCLA preliminary G20 report26 dealt with most of the police related events that
occurred in Toronto during the G20 conference during the weekend of June 26th and 27th
2010 I will only make reference to a few portions of the report that deal with the Terms
of Reference
26 Canadian Civil Liberties Association A Breach of the Peace ndash A Preliminary Report of Observations During the 2010 G20 Summit June 29 2010 online Canadian Civil Liberties Association lthttpcclaorgwordpresswp-contentuploads201006CCLA-Report-A-Breach-of-the-Peace-Preliminary-report-updated-July-8pdfgt
20
The report of the CCLA called for the repeal or significant amendment to the PWPA ldquoto
meet basic constitutional standardsrdquo27 The CCLA ldquosuggests that the broad police powers
granted under the Act are inconsistent with current Charter requirementsrdquo28
I agree with the observation of the CCLA that the provisions of the PWPA led to a ldquolack
of clarity as to the scope of the search and seizure powersrdquo29 which created many
difficulties and conflicts that probably could have been avoided I would also certainly
agree with a conclusory comment in this preliminary report that ldquoit is the duty of police
officers to act with fairness and equanimity toward all citizens in accordance with the law
of the country The presumption of innocence and the protection against arbitrary arrests
and detention are at the core of a commitment to justicerdquo30
The CCLA in partnership with the National Union of Public Employees organized
public hearings for two days in Toronto and one day in Montreal in November of 2010
which they referred to as a Citizens Inquiry The Citizens Inquiry heard from 63 members
of the public who had witnessed policing incidents or had been detained Several lawyers
and academics also participated in the hearing and offered commentary on the events of
the G20 from a legal or policing perspective including issues related to the PWPA A
report of the hearings titled ldquoG20 Toronto Breach of the Peace Public Hearingsrdquo was
released on February 28 2011 which also referred to the PWPA31
27 Ibid p 2228 Ibid p 929 Ibid p 1230 Ibid p 2131 Canadian Civil Liberties Association and the National Union of Public and General Employees G20 Toronto Breach of the Peace Public Hearings February 2011 online Canadian Civil Liberties Association lthttpcclaorgwordpresswp-contentuploads201102Breach-of-the-Peace-Final-Reportpdfgt
21
2 The Ontario Ombudsman Report
The Ontario Ombudsman commenced an investigation after receiving complaints relating
to a variety of issues concerning the G20 The Marin Report recognized that ldquotypically
international summits attract protests and protests can turn violent and even deadlyrdquo32
The report therefore does not quarrel with the requirement that a high level of security is
required for such events
The report in my view accurately describes the PWPA as ldquounique in Canada in terms of
the breadth of its reach and the powers it confershellipno other Canadian statute defining
lsquopublic worksrsquo contains provisions similar to those found in Ontariorsquos Actrdquo33
32 Ontario Ombudsman report Investigation into The Ministry of Community Safety and Correctional Servicesrsquo Conduct in Relation to Ontario Regulation 23310 under the Public Works Protection Act ldquoCaught in the Actrdquo by Andreacute Marin (Toronto Ombudsman of Ontario December 2010) online Ombudsman of Ontario lthttpwwwombudsmanoncamedia157555g20final1-enpdfgt (ldquoMarin Reportrdquo) at para 733 Ibid at para 97
22
SECTION 4 POWERS OF THE POLICE
Pursuant to the Terms of Reference I have been asked to consider for future purposes
whether the powers given to peace officers and guards under the PWPA are necessary to
protect public works secure intergovernmental conferences or for any other purposes
To answer that question it is necessary to assess whether the current common law and
statutory regime provide the police with sufficient powers to perform these vital services
A Common Law Powers and Powers Pursuant to Police Services Acts
The police have extensive common law powers that can be used in protecting and
securing intergovernmental conferences and in protecting public works It is necessary to
examine those powers in order to assess whether and what if any additional powers are
needed such as those provided by the PWPA
Of particular assistance in this regard is R v Knowlton34 where the Supreme Court of
Canada considered whether the powers possessed by peace officers at common law and
statute in securing an area for the protection of a foreign dignitary were lawful The
Supreme Court of Canada held that in order for the exercise of peace officer powers to be
lawful the powers must satisfy the two step test set out in R v Waterfield35 First the
power must be in furtherance of a lawful duty Traditional common law peace officer
duties include the preservation of the peace and the prevention of crime These common
law police duties amongst others are now statutorily enshrined in s 42(1) of Ontariorsquos
Police Services Act (and other provincial police services acts)36 The second part of the
test requires an evaluation of whether the conduct of the peace officer was ldquojustifiedrdquo To
34 [1974] SCR 443 [ldquoKnowltonrdquo]35 See for example R v Dedman [1985] 2 SCR 236 RSO 1990 c P15
23
do so one applies the standard of what is reasonably necessary in light of the totality of
the circumstances In evaluating whether the conduct of the peace officer was justified it
is important to consider ldquothe duty being performed the extent to which some interference
with individual liberty is necessary in the performance of that duty the importance of the
performance of the duty to the public good the nature of the liberty being interfered with
and the nature and extent of the interferencerdquo37
In Knowlton police in Edmonton cordoned off an area as part of the security
arrangements for the visit of Premier Kosygin of the USSR Premier Kosygin had been
assaulted in Ottawa a few days prior to his visit to Edmonton Knowlton entered the
secured area questioning the power of the peace officer to prevent his entry He was
arrested without a warrant and charged with obstructing a peace officer in the execution
of his duties Knowlton argued that the peace officer did not have the power to prevent
his entry and was not acting in the execution of his duty
The Supreme Court of Canada emphasized the heightened importance of security when
there are visiting foreign dignitaries38
It is notorious and of common knowledge that the official visit of the head of state or high rank dignitary of a foreign country friendly as either may be is an event that frequently engenders a real or apprehended threat to the preservation of peace and that calls therefore for the adoption of proper and reasonable security measures in and by the host countryhellipThe restriction of the right of free access of the public to public streetshellipwas one of the steps--not an unusual one--which police authorities considered and adopted as necessary for the attainment of the purpose aforesaid In my opinion such conduct of the police was clearly falling within the general scope of the duties imposed upon them
37 R v Mann [2004] 3 SCR 59 at 7938 Supra note 34 at 447-448
24
In addressing the first part of the Waterfield test the Court referenced provisions of the
Alberta Police Act and the Criminal Code and concluded that the conduct of the peace
officers fell within the general scope of the duties imposed upon them for example
preservation of the peace and prevention of crime39
According to the principles which for the preservation of peace and prevention of crime underlie the provisions of s 30 amongst others of the Criminal Code these official authorities were not only entitled but in duty bound as peace officers to prevent a renewal of a like criminal assault on the person of Premier Kosygin during his official visit in Canada In this respect they had a specific and binding obligation to take proper and reasonable steps The restriction of the right of free access of the public to public streets at the strategic point mentioned above was one of the steps--not an unusual one--which police authorities considered and adopted as necessary for the attainment of the purpose aforesaid In my opinion such conduct of the police was clearly falling within the general scope of the duties imposed upon them
In analyzing the second step of the Waterfield test the Court concluded that there was no
evidence indicating the police officers resorted to an unjustifiable use of the powers
associated with the duties imposed on them
The Court in Knowlton recognized broad police powers to cordon off areas as part of the
security arrangements involving internationally protected persons In addition the Court
found that the warrantless arrest in that case was not an unjustifiable or unreasonable use
of powers associated with the police duties to preserve the peace order public safety and
to enforce the law and prevent crime Finally the Court found that peace officers were
duty bound ldquoto prevent a renewal of a like criminal assault on the person of Premier
Kosygin during his official visit in Canadardquo40 Furthermore it stated the closing of public
39 Ibid 40 Ibid at 447
25
streets ldquowas one of the steps -- not an unusual one -- which police authorities considered
and adopted as necessaryrdquo41
The Knowlton decision clearly acknowledged that the police had the duty and authority to
establish and enforce a secured area to protect a foreign dignitary In order to carry out
these duties the police may do what is reasonably necessary in light of the totality of the
circumstances
Though Knowlton was decided prior to the enactment of the Canadian Charter of Rights
and Freedoms (the ldquoCharterrdquo) this does not in my view affect the clear statement by the
Supreme Court of Canada regarding the duty of the police under the common law and the
Alberta Police Act to provide this security While the facts of Knowlton were quite
compelling in relation to the obvious need to provide adequate security for Premier
Kosygin the decision is equally important authority regarding the general responsibilities
of the police at common law and statute in relation to the preservation of the peace
B Other Statutory Powers
1 Criminal Code
Some specific powers are provided to peace officers pursuant to the Criminal Code42
Section 31 gives peace officers the power to arrest an individual for breach of the peace
Peace officers can arrest those committing the breach of the peace or those who on
reasonable grounds heshe believe are about to join in or renew the breach of the peace
Peace officers also have powers at their disposal under ss 63-69 of the Criminal Code to
deal with the offences of unlawful assembly and riots
41 Ibid at 447-448 42 RSC 1985 c C-46
26
2 Trespass to Property Act
The Ontario Trespass to Property Act43 is a potential source of police power to arrest
without warrant those who are unlawfully on certain premises or who were recently
unlawfully on the premises and refuse to give their name and address44 This statute
deals with illegal entry into both private and public property by creating the offence of
trespass for those who without the express permission of the occupier enter on to
premises or engage in an activity on the premises when it is prohibited by the statute45
Though this statute is primarily used by private property owners to keep unwanted people
off of their property it has also been invoked by the Speaker of the House46 and by the
City of Toronto47 It must be noted however that using the Trespass to Property Act in
relation to removing individuals from ldquopublicrdquo places may raise Charter issues48
3 Foreign Missions and International Organizations Act
The RCMP as peace officers have the general duty to preserve the peace and prevent
crime and offences as set out in s 18 of the Royal Canadian Mounted Police Act49
Additional duties found in s 17 of the Royal Canadian Mounted Police Regulations
198850 include the protection of ldquointernationally protected personsrdquo as defined in s 2 of
the Criminal Code Internationally protected persons include heads of state and their
43 RSO 1990 c T2144 Ibid ss 9(1) 1045 Ibid s 2(1)46R v Behrens [2004] OJ No 5135 (CJ) The Court held that the issue of the trespass notices fell under the Speakerrsquos parliamentary privilege and were not reviewable even on the basis of a Charter argument47R v Semple [2004] OJ No 2137 (CJ)48 In R v Semple the defendants were charged under the Ontario Trespass to Property Act for entering the grounds of Toronto City Hall after being banned from doing so In the end the Court held that the defendantsrsquo peaceful entry onto the grounds was an expression as per s 2(b) of the Charter Torontorsquos notice under the Act infringed on this freedom and in these circumstances it could not be justified under s 1 of the Charter 49 RSC 1985 c R-1050 SOR88-361
27
family members The RCMPrsquos duty to protect internationally protected persons is also
found in s 6(1) of the Security Offences Act51
In addition Canada is a signatory of the United Nations Convention on the Prevention
and Punishment of Crimes against Internationally Protected Persons including
Diplomatic Agents52 This Convention provides that the Government of Canada must
protect visiting heads of state or government foreign ministers representatives or
officials of a state or any official or other agent of an international organization of an
intergovernmental character and the family members that accompany him or her The
RCMP has the responsibility to carry out these security measures
Pursuant to s 101(1) of the FMIOA ldquoThe Royal Canadian Mounted Police has the
primary responsibility to ensure the security for the proper functioning of any
intergovernmental conference in which two or more states participate that is attended by
persons granted privileges and immunities under this Act and to which an order made or
continued under this Act appliesrdquo
The powers to carry out this mandate are found in s 101(2) of the FMIOA ldquothe Royal
Canadian Mounted Police may take appropriate measures including controlling limiting
or prohibiting access to any area to the extent and in a manner that is reasonable in the
circumstancesrdquo It is noteworthy that the FMIOA has legislated the same powers
provided to the police under common law and statute
In order to trigger the RCMP powers described in s 101 the Governor in Council on the
51 RSC 1985 c S-752 UNGA Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons including Diplomatic Agents 20 February 1977 UN Doc I-15410
28
recommendation of the Minister of Foreign Affairs and pursuant to s 5 of the FMIOA
made the G8 Summit Privileges and Immunities Order 201053 on December 10 2009
This order was repealed and a subsequent order54 was made on January 13 2010 A
similar order55 for the G20 Summit was made on March 11 201056
Therefore during the G20 the RCMP had the specific statutory power to limit or
prohibit access to any area and to any extent as long as the measures were appropriate
and done in a manner that was reasonable in the circumstances ldquoThe RCMP may secure
the perimeter of the security zone on land with fencing and restrict access to this zone
through the use of checkpoints and other measuresrdquo57
Though not invoked during the G20 s 101(4) of the FMIOA provides that arrangements
can be entered into with a province concerning the responsibilities of members of the
RCMP and members of the provincial and municipal police forces with respect to
ensuring the security for the proper functioning of an intergovernmental conference No
information was provided to me as to why such an arrangement was not entered into for
the G20
These intergovernmental security provisions of the FMIOA were enacted just prior to the
G8 being held in Kananaskis Alberta in 2002 In light of violent protests at international
events and the 911 terrorist attacks in the United States the Federal Government
53 SOR2009-33654 SOR2010-1355 SOR2010-6256 Supra note 17 ldquoUpon such an Order being made the RCMP in co-operation and collaboration with other police forces becomes impressed with the primary responsibility of ensuring not only the protection of the IPPs but also ensuring lsquosecurity for the proper functioningrsquo of the intergovernmental conference To that end the FMIOA provides that the lsquoappropriate measures including controlling limiting or prohibiting access to any area to the extent and in a manner that is reasonable in the circumstancesrsquo may be takenrdquo57 Ibid
29
considered it timely ldquoto clarify in statute the present common law authority for police to
provide security and protection for high profile international eventsrdquo58 At such events it
was intended that ldquothe RCMP is the lead to make sure that security is providedrdquo59
Given that it was clearly the intention of the Federal Government to have the RCMP as
the lead police force at these international events consideration should be given to
expand the use of the FMIOA to cover all large scale international events such as the
Olympics the Pan American Games and international trade fairs as these events are
routinely attended by heads of state and senior government officials Most recently
Vancouver held the 2010 Olympic and Paralympic Winter Games60 Though federal and
municipal legislation were passed to assist in securing the Games expansion and
application of the FMIOA would have been a better approach The RCMP as the national
police force ought to be in charge pursuant to their authority under the FMIOA
4 Emergency Legislation
Through my consultations with the parties listed in Appendix 2 I heard that while we are
not in a time of war as in 1939 when the PWPA was enacted we live in an age of
international and local terrorism threats Our democratic society must be vigilant in
58 Canada House of Commons Debates 37th Parl 1st Sess No 93 (5 October 2001) at 100059 Canada House of Commons Standing Committee on Public Safety and National Security 40th Parl 3rd
Sess Evidence (25 October 2010)60 In anticipation of this event the Governor General in Council on the recommendation of the Minister of Transport pursuant to the Aeronautics Act (RSC 1985 c A-2) and the Canadian Air Transport Security Authority Act (SC 2002 c 9 s 2) passed the Vancouver 2010 Aviation Security Regulations (SOR2009-298) The purpose of the regulations was to enhance aviation security during the Games The Regulation provided for extra security and extra authorized means to conduct screenings In addition the Vancouver City Council passed the very lengthy By-law No 9962 known as the ldquoVancouver 2010 Olympic and Paralympic Winter Games By-Lawrdquo Specific security measures to be employed at a city live site (described thoroughly in a Schedule to the By-Law) that were enabled by this By-Law included The installation and monitoring of airport style and other security measures including magnetometers and X-ray machines the installation and monitoring of closed circuit television cameras the searching of any person who wished to enter on to a city live site and any bag luggage or other container carried by such person and the prohibiting of access to or removal from a city live site any person who refused to submit to a search
30
maintaining a proper level of security while recognizing that democratic values and
security issues can conflict where public order is at issue It is important to highlight that
provincial legislation exists dealing with both terrorism threats and emergency situations
I have been informed that federal and provincial counter-terrorism plans exist that
address preventing and responding to acts of terrorism
The Police Services Act regulations mandate police forces to establish procedures
consistent with federal and provincial counter-terrorism plans61 and to have policies with
respect to counter-terrorism62 In addition the Emergency Management and Civil
Protection Act allows for orders to be made in situations specifically designated an
ldquoemergencyrdquo63 by the Lieutenant Governor in Council or the Premier that regulate or
prohibit travel and movement to from or within any specified area64 Therefore the
PWPA is not needed to deal with these emergency situations as specific more recent
emergency legislation is in place for that very purpose
C Gaps in Canadian Police Powers
The Ministry of Community Safety and Correctional Services provided me with an
interesting article published in 2010 entitled ldquoThe Gap in Canadian Police Powers
61 Adequacy and Effectiveness of Police Services O Reg 399 s 2862 Ibid s 2963 Section 1 of the Emergency Management and Civil Protection Act defines an ldquoemergencyrdquo as ldquoemergencyrdquo means a situation or an impending situation that constitutes a danger of major proportions that could result in serious harm to persons or substantial damage to property and that is caused by the forces of nature a disease or other health risk an accident or an act whether intentional or otherwise (ldquosituation drsquourgencerdquo)64 RSO 1990 c E9 s 702(4)
31
Canada needs lsquoPublic Order Policingrsquo Legislationrdquo and co-authored by Wesley Pue and
Robert Diab65
This article was prompted by the debate over the cost nature and extent of security to be
employed at the Vancouver 2010 Winter Olympics The authors criticized the fact that
policing authorities in Canada ldquolack specific statutory authorization to take measures
commonly thought necessary to their missionrdquo66 These measures included security
fences in public areas designated protest areas restricted access to public space police
surveillance and searches without cause
The authors recognize that such powers may be necessary but note that ldquono legislature
has ever expressly conferred such powers on policing authorities outside the context of
international intergovernmental conferences Nor does the common law accord such
powers to state officials on its ownrdquo67 I respectfully disagree with this latter statement
It is my view the police have powers pursuant to the common law and statute as I have
discussed in the preceding section
The authors referred to R v Knowlton68 which I have previously discussed While the
authors give Knowlton a very narrow interpretation stating that ldquoits binding principle is a
good deal narrower than the words taken out of context might suggestrdquo69 I however am
of the view that the decision supports the proposition that police have a broad range of
65 Wesley Pue and Robert Diab ldquoThe Gap In Canadian Police Powers Canada Needs lsquoPublic Order Policingrsquo Legislationrdquo (2010) 28 Windsor Rev Legal Soc Issues 87 Wesley Pue is a professor of legal history at the University of British Columbia and Robert Diab is a PhD candidate at the UBC Faculty of Law66 Ibid p 8867 Ibid68 Supra note 3469 Supra note 65 p 92
32
responsibilities with deep historical roots in the common law and codified in statute a
position shared by the Federal Government when it introduced amendments to the
FMIOA The actions of the police in Knowlton were necessarily incidental to their
common law police duties and powers
The authors conclude that this ldquoauthority of police to create zones of exclusion either as
an incident of the general and ancient duties of constableshelliphas never been established in
the courtsrdquo70 I am of the view however that the role of the police in establishing
security zones relating to a crime a serious accident or other emergency is a routine and
well-accepted use of police powers pursuant to their common law and statutory duties I
am not suggesting that this common law authority permits the police to establish security
zones ldquofor the proper functioning of any intergovernmental conference in which two or
more states participaterdquo71 larger than necessary to fulfill their purpose The FMIOA as
amended in 2002 provides the RCMP with ldquoprimary responsibility to ensure the security
for the proper functioning of the intergovernmental conferencerdquo72 It is interesting
however that when the Federal Government was enacting this specific authority the
legislative debates indicated that the government was merely clarifying ldquoin statute the
present common law authority for police to provide security and protection for high
profile international eventsrdquo73
Security perimeters are routinely erected by police in the context of the commission of a
crime motor vehicle and other accidents as well as the Santa Claus parade and other
70 Ibid p 9671 Supra note 8 s 101(1)72 Ibid73 Supra note 58
33
parades It would in my view be quite impractical and unnecessary to legislate an
extensive code of police powers given their common law and statutory responsibilities to
generally maintain public order It is not advisable in my opinion to be prescriptive in
any way regarding what actions the police can take since they must assess what the
situation warrants while at the same time considering individual rights and freedoms
The details of any police response to an emergency must be tailored to the exigencies
related to the situation
The police clearly have common law and statutory authority to conduct warrantless
searches in specific situations (ldquoin exigent circumstancesrdquo)74 However when
warrantless searches must be carried out on a regular routine basis the police are acting
more like full time security guards and there should be specific statutory authority
provided to give such powers
I certainly accept the general proposition the authors assert that the mobility rights of
citizens should not be unreasonably or unfairly dealt with However one only need be
aware of the massive amount of construction taking place on the streets of Toronto as this
Report is being written to appreciate that it is not always reasonable to expect that ldquothe
rights of businesses homeowners and ordinary citizens to go about their routine
activities without interruptionrdquo75 will go unhindered While generally desirable it cannot
be legally guaranteed At the same time the authors do concede that ldquoimportant as they
74 Supra note 42 s 4871175 Supra note 65 p 89
34
are the rights of assembly movement and protest are not unqualified They can ndash and
should ndash be balanced against other important public needsrdquo76
In my view public policing at times requires innovation as it often benefits from
creative problem solving If police abuse their common law powers related to ldquopublic
order policingrdquo they are accountable to a multiplicity of authorities and the rule of law
most particularly the Charter The legal rights outlined in the Charter such as ldquothe
principles of fundamental justicerdquo77 security ldquoagainst unreasonable search and seizurerdquo78
and ldquothe right not to be arbitrarily detained or imprisonedrdquo79 are described very
generally However they were chosen deliberately as it was recognized that in each case
there is an inherent tension between imposing security measures and fundamental rights
and freedoms Determining which is paramount will be based on the facts of each case
76 Ibid p 9177 Canadian Charter of Rights and Freedoms s 7 Part I of the Constitution Act 1982 being Schedule B to the Canada Act 1982 (UK) 1982 c 1178 Ibid s 879 Ibid s 9
35
SECTION 5 LEGAL ANALYSIS OF THE PUBLIC WORKS PROTECTION ACT
A Legal Analysis of the Legislation
Many stakeholders have questioned the constitutional validity of the PWPA and O Reg
23310 The Ontario Ombudsman seriously questioned whether O Reg 23310 could
pass ldquoconstitutional musterrdquo80 The CCLA suggested that the broad police powers
granted under the PWPA were inconsistent with the Charter81
To the same effect were comments made by Premier Dalton McGuinty who described
the PWPA as ldquoan archaic law that was used to undermine Torontoniansrsquo civil rights
during the G20rdquo82 He elaborated83
The issue is whether itrsquos appropriate given our present-day values and given an old law which I am confident doesnrsquot strike the balance that you and I would want today in terms of public safety and individual freedom of expressionhellipWhen you start talking about civil rights individual freedoms yoursquore talking about those things that in fact define us as a free and democratic societyhellipItrsquos something that is real and meaningful and important to all of us
The Terms of Reference for this Review do not require that I conduct a constitutional
analysis of the PWPA I have however been asked to consider areas for reform and if
appropriate make specific recommendations for amendment or repeal This does require
that I therefore consider whether the legislation may be vulnerable to constitutional
challenge
Section 2(b) of the Charter guarantees everyone the fundamental freedom of expression
The definition of ldquoexpressionrdquo has been interpreted broadly ldquoActivity is expressive if it
80 Supra note 32 at para 23381 Supra note 26 p 982 Robert Benzie and Rob Ferguson ldquoMcGuinty shifts focus to fixing G20 lawrdquo Toronto Star (10 December 2010) online thestarcom lthttpwwwthestarcomnewscanadaarticle905436--mcguinty-shifts-focus-to-fixing-g20-lawgt 83 Ibid
36
attempts to convey meaningrdquo84 While freedom of expression is not absolute there is
very little that is not considered expression However expression that advocates violence
is not protected under s 2(b)85
The Supreme Court of Canada in Committee for the Commonwealth of Canada v
Canada held that s 2(b) ldquodoes not encompass the right to use any and all government
property for purposes of disseminating onersquos views on public matters but I have no doubt
that it does include the right to use for that purpose streets and parks which are dedicated
to the use of the public subject no doubt to reasonable regulation to ensure their
continued use for the purposes to which they are dedicatedrdquo86 It seems clear that
protesting in public streets is a form of expression protected by s 2(b) Protesting at an
intergovernmental conference is clearly expressive in nature
In challenges alleging that a statute contravenes s 2(b) of the Charter a court would
examine whether the purpose or effect of a law contravenes section 2(b)87 There is no
reason to suggest that the purpose of the PWPA was to infringe the freedom of
expression The purpose of the PWPA is to protect important public infrastructures A
court would then have to consider whether the effect of the PWPA may have resulted in
an infringement of freedom of expression
O Reg 23310 defined significant portions of downtown Toronto as a ldquopublic workrdquo
Section 3(c) of the PWPA allows peace officers to refuse entry into public works which
therefore limits the areas in which protesters could express themselves By creating the
84 Irwin Toy Ltd v Queacutebec (Attorney General) [1989] 1 SCR 927 at 96885 Ibid at 97086 [1991] 1 SCR 139 at 165-16687 Peter Hogg Constitutional Law of Canada loose-leaf (consulted on 7 January 2011) 5th ed (Toronto Thomson Reuters Canada Limited 2007) at 43-6
37
relatively large security perimeter designated by the regulation individuals may allege
they were not permitted to communicate directly with those they were protesting against
Furthermore individuals could not communicate in public places such as public streets
where the right to freedom of expression has previously been found to exist88
Commissioner Ted Hughes completed an interim report following a public hearing into
the complaints regarding events that took place with respect to the Asia Pacific Economic
Cooperation (APEC) Conference in Vancouver British Columbia in November 1997
Commissioner Hughes recommended that generous opportunity should be afforded to
peaceful protesters to be seen in their protest activities by guests at the event89
Section 7 of the Charter provides that ldquoEveryone has the right to life liberty and security
of the person and the right not to be deprived thereof except in accordance with the
principles of fundamental justicerdquo The PWPA raises issues regarding the liberty and
security of the person in providing for warrantless searches and stopping for
identification Furthermore vague laws offend two fundamental values of our legal
system90 Firstly individuals are not provided with sufficient guidance as to what
behaviour a law prohibits Secondly those in charge of enforcing the law are not
provided with clear guidance as to how to enforce it A vague law can lead to inconsistent
and arbitrary enforcement91
88 Supra note 86 89 Canada Commission for Public Complaints Against the RCMP APEC ndash Commission Interim Report (31 July 2001) at s 3111 (Commissioner Ted Hughes QC) online Commission for Public Complaints Against the RCMP lthttpwwwcpc-cppgccaprrrepphrapecapec-31-engaspxgt90 Supra note 87 at 47-60 91 ldquoA vague provision does not provide an adequate basis for legal debate that is for reaching a conclusion as to its meaning by reasoned analysis applying legal criteria It does not sufficiently delineate any area of risk and thus can provide neither fair notice to the citizen nor a limitation of enforcement discretion Such
38
As described by Professor Hogg92
The requirement that any limit on rights be prescribed by law reflects two values that are basic to constitutionalism or the rule of law First in order to preclude arbitrary and discriminatory action by government officials all official action in derogation of rights must be authorized by law Secondly citizens must have reasonable opportunity to know what is prohibited so that they can act accordingly Both these values are satisfied by a law that fulfils two requirements (1) the law must be adequately accessible to the public and (2) the law must be formulated with sufficient precision to enable people to regulate their conduct by it and to provide guidance to those who apply the law
As I stated earlier the phrase ldquoany approach theretordquo contained in s 3(a) of the PWPA is
potentially vague No criteria are provided to assist in determining when one is on ldquoany
approach theretordquo A phrase such as ldquoany approach theretordquo is subject to many potential
interpretations It is arguable that this language does not provide reasonable guidance for
individuals to obey the law and for the law to be consistently enforced
Section 8 of the Charter provides that ldquoEveryone has the right to be secure against
unreasonable search or seizurerdquo A warrantless search or seizure is only reasonable if the
search was authorized by law the law itself is reasonable and the manner in which the
search carried out was reasonable93 The fact that no reasonable or probable suspicions
are needed to carry out a search pursuant to s 3(b) of the PWPA raises some issues The
only prerequisite to such a search is that the person or vehicle being subjected to a search
is entering or attempting to enter a public work
a provision is not intelligible to use the terminology of previous decisions of this Court and therefore it fails to give sufficient indications that could fuel a legal debaterdquo (R v Nova Scotia Pharmaceutical Society [1992] 2 SCR 606 at 639-640) 92 Supra note 87 at 38-1293 R v Nolet [2010] SCJ No 24 at para 21
39
Whether the PWPArsquos s 3(b) authority to undertake warrantless searches is ldquoreasonablerdquo
depends on the reasonableness of the impact on the subject of the search ldquoThe
individuals reasonable expectation of privacy must of course be balanced against the
public interest in effective law enforcementrdquo94 It is harder to justify a warrantless search
where the reasonable expectation of privacy is higher For example interference with
bodily integrity will raise the standard of reasonableness Conversely in situations where
people expect to have a lower level of privacy the standard to prove reasonableness is
lower
One rightfully has some expectation of privacy when in public but it does not rise to the
level of privacy that one expects in onersquos home The expectation of privacy further
decreases when one attempts to enter a ldquopublic workrdquo especially in the context of a
secured barrier to an intergovernmental conference
Section 9 of the Charter provides that ldquoEveryone has the right not to be arbitrarily
detained or imprisonedrdquo95 Under s 3(a) of the PWPA a person entering or attempting to
enter or approach a public work must provide his or her name and address and state the
purpose for which he or she desires to enter the public work In order for a guard or
peace officer to carry out this duty the guard or peace officer may ldquostoprdquo the person from
further approaching or entering the public work and the person is not permitted under the
statute to decide not to enter By so doing it is arguable the guard or peace officer has
assumed control over the movement of the individual by a demand or direction The
94 R v Rao [1984] OJ No 3180 at para 79 (CA)95 ldquoDetention under s 9hellipof the Charter refers to a suspension of the individualrsquos liberty interest by a significant physical or psychological restraint Psychological detention is established either where the individual has a legal obligation to comply with the restrictive request or demand or a reasonable person would conclude by reason of the state conduct that he or she had no choice but to complyrdquo (R v Grant [2009] SCJ No 32 at para 44)
40
PWPA provides for a significant legal consequence if the demand or direction is not
followed since ldquoEvery person who neglects or refuses to comply with a request or
direction made under this Act by a guard or peace officer and every person found upon a
public work or any approach thereto without lawful authority the proof whereof lies on
him or her is guilty of an offence and on conviction is liable to a fine of not more than
$500 or to imprisonment for a term of not more than two months or to bothrdquo96
Pursuant to s 3(b) of the PWPA a guard or peace officer may search any person entering
or attempting to enter a public work These searches would necessitate the detention of a
person If a guard or peace officer performs such a search he or she has taken control
over the movement of the person by a demand or direction The same serious legal
consequence results from failing to obey this demand or direction as that which results
from failing to obey the demand or direction pursuant to s 3(a) of the PWPA As a
result ldquodetentionsrdquo could occur pursuant to both s 3(a) and s 3(b) of the PWPA
The question that would need to be addressed in any challenge to the PWPA is whether
the detentions permitted by the PWPA are arbitrary in nature The use of the term ldquoany
approach theretordquo is vague and imprecise A person could be deemed to be on ldquoany
approach theretordquo a great distance from the entrance of a public work and their detention
might very well be arbitrary In addition the fact that the guards and peace officers
determine the boundaries of the ldquoapproachesrdquo which cannot be contested seems
arbitrary as well as who they chose to search
96 It should be noted that not all communications with state authorities and police officers will amount to a detention The question is whether a person may reasonably believe that he or she is free to refuse to comply
41
Section 11(d) of the Charter provides that ldquoAny person charged with an offence has the
right to be presumed innocent until proven guilty according to law in a fair and public
hearing by an independent and impartial tribunalrdquo This requires that the Crown have the
burden of proving the guilt of an individual charged with an offence97 Provisions that
place the burden on the accused to disprove on the balance of probabilities an essential
element of an offence raises s 11(d) concerns because convictions would be possible
even if reasonable doubt existed98 The presumption of innocence is not only infringed
upon by a requirement that an accused disprove an essential element of an offence but
also any requirement on an accused to prove a fact on the balance of probabilities to
avoid conviction
Section 5(1) of the PWPA states that ldquoEvery person who neglects or refuses to comply
with a request or direction made under this Act by a guard or peace officer and every
person found upon a public work or any approach thereto without lawful authority the
proof whereof lies on him or her is guilty of an offence and on conviction is liable to a
fine of not more than $500 or to imprisonment for a term of not more than two months or
to bothrdquo For the offence of being found upon a public work or on any approach to a
public work without lawful authority the burden of proof has been ldquoshiftedrdquo from the
Crown to the accused to prove lawful authority
As the foregoing analysis reveals there are certainly many concerns that arise when one
places the PWPA under the lens of the Charter However the rights and freedoms
provided by the Charter are not absolute They are ldquosubject only to such reasonable
97 R v Oakes [1986] 1 SCR 10398 Ibid at 132
42
limits prescribed by law as can be demonstrably justified in a free and democratic
societyrdquo99
In assessing whether a law which infringes the Charter is saved by s 1 a court examines
both the object of the law and the measures taken to achieve that objective A lawrsquos
objective achieves the status of being sufficiently important to justify overriding a
Charter right only when it is consistent with the values of a free and democratic society
The objective must relate to pressing and substantial concerns and not concerns that are
trivial and must be focussed on ldquothe realization of collective goals of fundamental
importancerdquo100 The measures adopted must be ldquorationally connectedrdquo to the objective of
the law101 The measures ldquoshould impair lsquoas little as possiblersquo the right or freedom in
questionrdquo102 Furthermore there must be ldquoa proportionality between the effects of the
measures which are responsible for limiting the Charter right or freedom and the
objective which has been identified as of lsquosufficient importancersquordquo103
An issue that may affect whether the potential limitation on rights and freedoms of the
PWPA and O Reg 23310 were ldquoprescribed by lawrdquo is whether the regulation was
adequately accessible to the public The Ontario Ombudsman the CCLA and the Ontario
Bar Association (ldquoOBArdquo) all noted a lack of notice regarding O Reg 23310 and its
effects prior to and during the G20 While the text of the regulation was available prior
99 Charter s 1 The Superior Court of Quebec decision of Tremblay v Queacutebec (Attorney General) [2001] JQ No 1504 (CS) involved an interim injunction brought by an applicant who was denied entry into the secured perimeter during the 2001 Summit of the Americas in Queacutebec City The applicant sought an injunction to either eliminate the security barrier or to be given a pass to let him within the secured perimeter Even though the Court held that the erection of the security zone violated the applicantrsquos right to freedom of expression and peaceful assembly The court held that the infringement was ldquodemonstrably justified in a free and democratic societyrdquo100 Supra note 97 at 136101 Ibid at 139102 Ibid103 Ibid
43
to the G20 it was only available on a website not frequently accessed by the public
Since O Reg 23310 was not published in The Ontario Gazette until after it was
revoked it may be that the regulation was not adequately accessible to the public
Reverse onus offences have been found to be ldquorationally connectedrdquo when there is plainly
a rational connection between the proven fact and the fact to be presumed Reverse
onuses have also been upheld when the burden placed on the Crown would be virtually
impossible to meet (such as proving sanity)104 Even if the accused only has the burden
of disproving the fact that heshe did not have lawful authority to be in a public work or
on an approach thereto there may not be a rational connection between the proven fact
and the fact to be presumed
The history of threats and violence at previous intergovernmental conferences
demonstrated that the protection of G20 participants was a pressing and substantial
concern However given the broadness of the PWPA every exercise of it raises the
potential for Charter scrutiny
Recommendation
Given the public policy considerations I have raised regarding the PWPA and Charter
concerns that could arise I recommend that the PWPA be repealed after the Province has
considered potential policy and security gaps as a result of its repeal
B Other uses of the Public Works Protection Act
It appears from my consultations with stakeholder groups that if the PWPA is repealed
104 R v Chaulk [1990] 3 SCR 1303 at 1340
44
there are two areas which may require legislation to provide specific peace officer
powers These two areas are court security and the protection of nuclear power facilities
and other power generating infrastructures
1 Court Security
During my decade as Ontariorsquos Attorney General (1975 to 1985) there were three
murders in provincial courthouses as well as many threats to members of courthouse staff
and others As violent acts in courthouses can be anticipated courtroom security is often
required
Individuals are compelled to go to court for a variety of reasons such as appearing as an
accused as a witness or for jury duty To provide protection to those who work there or
are compelled to attend an adequate level of court security may require a search without
warrant of each and every individual who seeks to enter a courthouse It is not reasonable
to require prior judicial authorization for each search that takes place
The courts have considered the constitutionality of these provisions of the PWPA in
conjunction with section 137 of the Ontario Police Services Act in the context of court
security
Section 137 of the Ontario Police Services Act imposes a responsibility on municipal
police services boards to secure the premises where court proceedings are conducted and
includes
1 Ensuring the security of judges and of persons taking part in or attending proceedings
45
2 During the hours when judges and members of the public are normally present ensuring the security of the premises
3 Ensuring the secure custody of persons in custody who are on or about the premises including persons taken into custody at proceedings
4 Determining appropriate levels of security for the purposes of paragraphs 1 2 and 3
In R v Campanella105 Ms Campanella was attending the John Sopinka Courthouse in
Hamilton At the courthouse there were signs posted stating that those who entered
would be searched for weapons When Ms Campanellarsquos bag was searched marijuana
was found and she was charged with the possession of marijuana She argued that her s
8 Charter protection against unreasonable search and seizure had been violated and the
marijuana discovered during the search should therefore be excluded as evidence The
trial judge and the summary convictions appeal court rejected the section 8 Charter
argument and the appellant appealed to the Ontario Court of Appeal
The Ontario Court of Appeal agreed that ldquogiven the importance of the government
objective and the context in which these searches take place it is reasonable to authorize
warrantless searches of those entering courthouse facilitiesrdquo106 The Court stated ldquothe
only effective way to diminish the risk in a large courthouse is to subject everyone
without prior security clearance to some kind of inspection I can see no other feasible
means of achieving the aimrdquo107
The Court also pointed out the concern relating to the erosion of the benefits and
105 [2002] OJ No 5104 (SCJ) affrsquod [2005] OJ No 1345 (CA) [ldquoCampanellardquo]106 R v Campanella [2005] OJ No 1345 at para 17 (CA)107 Ibid at para 19
46
protections conferred by s 8 of the Charter108
I am sensitive to the concern that we should not erode the benefits and protections of s 8 by gradually sanctioning ever-greater intrusions into privacy because of unfounded fears We should not lightly accept that searches in public places are justified solely because people have become used to them and expect them However the record in this case establishes the justification for the kinds of searches carried out in this case
Ultimately the appeal was dismissed and s 137 of the Police Services Act and s 3(b) of
the PWPA) were held to comply with s 8 of the Charter109
In its consultations with me the OBA similarly stated that the existing nature of court
security is necessary and is generally ldquowell toleratedrdquo At the same time however it
submits that the security regime should not be ldquoshoehornedrdquo into the PWPA regime and
that it would be preferable to provide a legislative framework tailored for the specific
security requirements While the PWPA has been relied upon as support for the exercise
of powers by the police in providing court security the OBA submits that the PWPArsquos
ldquosingle security schemerdquo which declares something a ldquopublic workrdquo is an ldquoawkward
blunt instrument in a world where more specialized tools are necessaryrdquo When
warrantless searches are being done on a routine basis it is advisable to have specific
legislation providing peace officers with such power
Recommendation
Court security legislation is currently in place in many jurisdictions across Canada and
contain provisions that permit warrantless searches of persons wanting to access a
108 Ibid at para 25109 The Court in R v SS [2005] OJ No 5002 (SCJ) agreed with the findings and rationale of the Court of Appeal in Campanella
47
courthouse The constitutional validity of such legislation in Manitoba was upheld by that
provincersquos highest court110
Given the ongoing need for warrantless searches at courthouses the Province of Ontario
should consider specific court security legislation in Ontario to support the security
measures in our courthouses if the PWPA is to be repealed taking into consideration the
responsibilities of the municipal police services boards provided in s 137 of the Police
Services Act This legislation should only be passed after proper notice consultation and
legislative debate
2 Power Generating Infrastructures
It is clear from the submissions that I received from representatives of OPG and the
Canadian Nuclear Safety Commission (ldquoCNSCrdquo) that the PWPA currently plays a role in
providing security officers with the powers to secure power generating infrastructures
including the ability to carry firearms and the ability to stop and require identification
from those in proximity to those nuclear plants
Security is of the utmost importance in protecting a nuclear power plant Members of the
public do not need to access a nuclear or similar power facility unless employed at the
facility or carrying out work for the facility111
The security of areas within nuclear power plants is governed by the Nuclear Security
110 R v Lindsay [2004] MJ No 380 (CA) 111 Though the discussion focuses on nuclear power plants I have been informed that other power generating infrastructures use the PWPA to designate their security officers as guards As a result if the PWPA is repealed it will be necessary to broaden the consultations in relation to these other power generating infrastructures
48
Regulations112 Every nuclear power plant must be located within a ldquoprotected areardquo113
This protected area is the area within a fenced perimeter which is alarmed and
continually patrolled This area must be equipped with devices that employ two
independent systems to detect intrusion into the area114 The Nuclear Security
Regulations also provide detailed specifications for the barrier which must enclose the
protected area115 In addition licensees must ldquoidentify all vital areas and implement
physical protection measures ndash including access control and measures designed to delay
unauthorized accessrdquo116
The Nuclear Security Regulations also provide detailed provisions regarding entry into
protected areas No person can ldquoenter a protected area without physical proof of the
recorded authorization of the licenseerdquo117 Further to this on entry into a protected area
ldquothat personrsquos identity shall be verified by two separate personnel identity verification
systems one of which is an access card reader and the other of which is a biometric
personnel identity verification devicerdquo118 Licensees must also ldquoensure that vehicle
portals are used for the entry and exit of land vehicles into and from a protected areardquo119
Physical protection measures are also required to reduce the chance of a forced land
vehicle entry into a protected area120
The power to conduct searches upon entry to a protected area is also provided by the
112 SOR2000-209 113 Ibid s 8114 Ibid s 11(a)(i)115 Ibid s 9116 Ibid s 141117 Ibid s 17(1)118 Ibid s 171119 Ibid s 91(1)120 Ibid s 91(4)
49
Nuclear Security Regulations Signs must be posted that are visible to people about to
enter the protected area stating that they must allow a nuclear security officer (ldquoNSOrdquo) to
ldquosearch them and everything in their possession including any land vehicle for weapons
and explosive substancesrdquo121 In addition when leaving the protected area people must
allow NSOs to ldquosearch them and everything in their possession including any land
vehicle for Category I II or III nuclear materialrdquo122 People are not permitted to enter or
leave a protected area unless these searches are carried out123 The Nuclear Security
Regulations provide for the method of search including ldquoa hand-held scanner a walk-
through scanner or any similar devicerdquo124 In addition if an NSO determines it
necessary a frisk search can be carried out by a person of the same sex125
I have been informed that the area outside of but adjacent to the ldquoprotected areardquo is
referred to as the ldquocontrolled areardquo This area includes roadways and waterways within
the nuclear facilityrsquos property boundaries adjacent to or in close proximity to the nuclear
power plantrsquos protected area and may be generally accessible to the public
As a result of the September 11 2001 terrorist attacks the Nuclear Security Regulations
were amended to require that high security nuclear facilities maintain an on-site armed
Nuclear Response Force (ldquoNRFrdquo)126 The NRF is composed of specialized NSOs
Section 32 of the Nuclear Security Regulations requires the NRF to be capable of making
an effective intervention taking into account the threat
121 Ibid s 27(1)(a)122 Ibid s 27(1)(b)123 Ibid s 27(2)124 Ibid s 27(5)(a)125 Ibid s 27(5)(b)126 Ibid s 32
50
Members of the NRF are mandated by the Nuclear Security Regulations to be ldquotrained in
the use of firearms authorized to carry firearms in Canada and qualified to use themrdquo127
However to satisfy this requirement the NRF resorts to the PWPA since the federal
regulations do not authorize the NRF to carry firearms without a licence However
under s 2(1) of the PWPA NSOs are designated as ldquoguardsrdquo with the powers of a peace
officer most significantly to carry and use firearms without having to be licensed128
Such a designation also enables the OPG to acquire and dispose of firearms
In the consultations I had with the OPG and the CNSC they advised me that NSOs
receive training equivalent to Canadian police standards and that NRF officers receive
training equivalent to federal and provincial police tactical team requirements
Another aspect of the PWPA used to secure nuclear power plants relates to powers
exercised by NSOs in ldquocontrolled areasrdquo The federal regulations do not provide the
NSOs with any power to demand identification within this area However pursuant to
the PWPA as appointed ldquoguardsrdquo the NSOs have the power to demand identity
verification in the controlled area They also have the authority to arrest anyone who
obstructs NSOs in the performance of their duties under the PWPA
In addition to using the PWPA to secure the controlled areas I have been advised by the
OPG that NSOs use powers pursuant to the PWPA to secure areas within 100 metres of a
nuclear facilityrsquos property line immediately adjacent to the controlled area These powers
are exercised under the broad language of the PWPA regarding ldquoapproaches to public
127 Ibid s 1 (on-site nuclear response force definition)128 Section 11707 of the Criminal Code exempts peace officers from licensing requirements for possessing firearms and other prohibited and restricted weapons
51
worksrdquo This is an illustration of the problem with the vagueness of this language in the
legislation As these powers are exercised on public land they could be challenged as a
potential infringement on individual rights and freedoms However I have been advised
that there have been no such incidents to date The need to ensure the security of these
facilities must be taken into the balance
NSOs must be able to monitor and control access to the controlled areas and areas close
to a nuclear power plantrsquos property line This provides for a more secure perimeter
around these facilities They need authority to challenge individuals acting in a suspicious
manner or conducting surveillance of nuclear facilities The OPG has informed me that
areas outside a nuclear facilityrsquos property line immediately adjacent to the controlled
area are still close enough to take advantage of the short distance to conduct intelligence
using high-powered surveillance equipment These nuclear power plants are not located
on isolated islands and are therefore vulnerable Both the Pickering Nuclear Generating
Station and the Darlington Nuclear Generating Station operate within major urban areas
being 30 km and 60 km east of downtown Toronto respectively I am advised that
previous events such as ldquoThe Toronto 18rdquo129 have shown that those intent on targeting
vital infrastructure such as power generating facilities often use reconnaissance and
intelligence gathering as precursor tactics
Recommendation
If the PWPA is to be repealed it is imperative that those who secure our nuclear and
power generating facilities be given the requisite specific legislative powers to do so
129 See for example ldquoLast 2 Toronto 18 accused found guiltyrdquo CBC News (23 June 2010) online cbcca lthttpwwwcbccanewscanadatorontostory20100623toronto-18-verdicthtmlgt
52
The source for these powers should be set out in the federal Nuclear Security
Regulations However if this is not a desired option the Government of Ontario must
consider specific legislation setting out the specific powers required to properly secure
these facilities and the specific location in which these powers can be exercised Such
legislation should not be passed without proper notice consultation and legislative
debate
53
SECTION 6 CONCLUSION
The PWPA was enacted in 1939 to support the war effort At the time the protection of
Ontariorsquos hydroelectric facilities from sabotage was of particular concern Since then the
PWPA has been used to provide the legal foundation for the powers exercised by the
police in providing court security and even more recently by the OPG in securing
nuclear power facilities In June 2010 the PWPA was used to provide powers to secure
intergovernmental conferences The vagueness of the PWPA permits it to be used in
situations when it is arguably not necessary and potentially abusive In my view the
PWPA has been used for purposes beyond its original intent
The time for the PWPA seems to have passed If the Government of Ontario enacts as I
have suggested specific legislation to provide for courthouse security and power
generating infrastructure security it would appear that there is no longer a need for the
PWPA I am also mindful of the existence of counter-terrorism and emergencies
legislation to deal with these situations as they arise
ldquoIn determining the boundaries of police powers caution is required to ensure the proper
balance between preventing excessive intrusions on an individualrsquos liberty and privacy
and enabling the police to do what is reasonably necessary to perform their duties in
protecting the publicrdquo130 The overly broad and vague language of the PWPA does not
strike this required balance with individual rights and freedoms
The late Justice Jackson of the United States Supreme Court stated that every
emergency power once conferred ldquolies about like a loaded weapon ready for the hand of
130 R v Clayton [2007] 2 SCR 725 at 742
54
any authority that can bring forward a plausible claim of an urgent needrdquo131 The need to
protect the public must be balanced with the requirement to preserve fundamental rights
and freedoms
Yet at the same time ldquoCanadians are entitled to demand the best public order policing
possible from their governmentrdquo132 There is no question that we live in a different world
post 911 We live in difficult times with constant threats both domestically and from
abroad The police clearly need to be given adequate powers to carry out their duties
The police use their expertise on a daily basis to assess the powers they require In
instances when they take action that exceeds their powers their actions are examined by
various mandated bodies This process I believe results in the proper balance between
police powers and individual rights and freedoms Therefore any legislation that purports
to grant special police powers must be specific and direct and developed in consultation
with stakeholders and tested through thorough debate in our transparent democratic
system
131 Korematsu v United States 323 US 214 (1944)132 Supra note 26 p 8
55
added)rdquo The provision in s 4 that ldquothe statement under oathhellipis conclusive evidence
thereofrdquo appears to remove from a courtrsquos consideration what could be a legitimate
dispute as to the boundaries of a public work or the approach thereto Furthermore the
apparent reversal of the onus of proof regarding lawful authority to be found in a public
work or an approach found in s 5 is also troublesome from a policy and legal point of
view
Accordingly if utilized to the extreme many government officials could appoint many
private armies to restrict access to many (in fact any) public places where the mere
statement under oath by the private guard of the boundaries of the areas under restricted
access is conclusive proof thereof Such potential for abuse is beyond troubling to say
the least
B Review of other Public Reports
As is evident from the foregoing discussion many issues arise regarding the operation of
the PWPA in todayrsquos context These considerations and others also formed the basis of
concerns raised in public reports which I was asked to review
1 Reports of the Canadian Civil Liberties Association
The CCLA preliminary G20 report26 dealt with most of the police related events that
occurred in Toronto during the G20 conference during the weekend of June 26th and 27th
2010 I will only make reference to a few portions of the report that deal with the Terms
of Reference
26 Canadian Civil Liberties Association A Breach of the Peace ndash A Preliminary Report of Observations During the 2010 G20 Summit June 29 2010 online Canadian Civil Liberties Association lthttpcclaorgwordpresswp-contentuploads201006CCLA-Report-A-Breach-of-the-Peace-Preliminary-report-updated-July-8pdfgt
20
The report of the CCLA called for the repeal or significant amendment to the PWPA ldquoto
meet basic constitutional standardsrdquo27 The CCLA ldquosuggests that the broad police powers
granted under the Act are inconsistent with current Charter requirementsrdquo28
I agree with the observation of the CCLA that the provisions of the PWPA led to a ldquolack
of clarity as to the scope of the search and seizure powersrdquo29 which created many
difficulties and conflicts that probably could have been avoided I would also certainly
agree with a conclusory comment in this preliminary report that ldquoit is the duty of police
officers to act with fairness and equanimity toward all citizens in accordance with the law
of the country The presumption of innocence and the protection against arbitrary arrests
and detention are at the core of a commitment to justicerdquo30
The CCLA in partnership with the National Union of Public Employees organized
public hearings for two days in Toronto and one day in Montreal in November of 2010
which they referred to as a Citizens Inquiry The Citizens Inquiry heard from 63 members
of the public who had witnessed policing incidents or had been detained Several lawyers
and academics also participated in the hearing and offered commentary on the events of
the G20 from a legal or policing perspective including issues related to the PWPA A
report of the hearings titled ldquoG20 Toronto Breach of the Peace Public Hearingsrdquo was
released on February 28 2011 which also referred to the PWPA31
27 Ibid p 2228 Ibid p 929 Ibid p 1230 Ibid p 2131 Canadian Civil Liberties Association and the National Union of Public and General Employees G20 Toronto Breach of the Peace Public Hearings February 2011 online Canadian Civil Liberties Association lthttpcclaorgwordpresswp-contentuploads201102Breach-of-the-Peace-Final-Reportpdfgt
21
2 The Ontario Ombudsman Report
The Ontario Ombudsman commenced an investigation after receiving complaints relating
to a variety of issues concerning the G20 The Marin Report recognized that ldquotypically
international summits attract protests and protests can turn violent and even deadlyrdquo32
The report therefore does not quarrel with the requirement that a high level of security is
required for such events
The report in my view accurately describes the PWPA as ldquounique in Canada in terms of
the breadth of its reach and the powers it confershellipno other Canadian statute defining
lsquopublic worksrsquo contains provisions similar to those found in Ontariorsquos Actrdquo33
32 Ontario Ombudsman report Investigation into The Ministry of Community Safety and Correctional Servicesrsquo Conduct in Relation to Ontario Regulation 23310 under the Public Works Protection Act ldquoCaught in the Actrdquo by Andreacute Marin (Toronto Ombudsman of Ontario December 2010) online Ombudsman of Ontario lthttpwwwombudsmanoncamedia157555g20final1-enpdfgt (ldquoMarin Reportrdquo) at para 733 Ibid at para 97
22
SECTION 4 POWERS OF THE POLICE
Pursuant to the Terms of Reference I have been asked to consider for future purposes
whether the powers given to peace officers and guards under the PWPA are necessary to
protect public works secure intergovernmental conferences or for any other purposes
To answer that question it is necessary to assess whether the current common law and
statutory regime provide the police with sufficient powers to perform these vital services
A Common Law Powers and Powers Pursuant to Police Services Acts
The police have extensive common law powers that can be used in protecting and
securing intergovernmental conferences and in protecting public works It is necessary to
examine those powers in order to assess whether and what if any additional powers are
needed such as those provided by the PWPA
Of particular assistance in this regard is R v Knowlton34 where the Supreme Court of
Canada considered whether the powers possessed by peace officers at common law and
statute in securing an area for the protection of a foreign dignitary were lawful The
Supreme Court of Canada held that in order for the exercise of peace officer powers to be
lawful the powers must satisfy the two step test set out in R v Waterfield35 First the
power must be in furtherance of a lawful duty Traditional common law peace officer
duties include the preservation of the peace and the prevention of crime These common
law police duties amongst others are now statutorily enshrined in s 42(1) of Ontariorsquos
Police Services Act (and other provincial police services acts)36 The second part of the
test requires an evaluation of whether the conduct of the peace officer was ldquojustifiedrdquo To
34 [1974] SCR 443 [ldquoKnowltonrdquo]35 See for example R v Dedman [1985] 2 SCR 236 RSO 1990 c P15
23
do so one applies the standard of what is reasonably necessary in light of the totality of
the circumstances In evaluating whether the conduct of the peace officer was justified it
is important to consider ldquothe duty being performed the extent to which some interference
with individual liberty is necessary in the performance of that duty the importance of the
performance of the duty to the public good the nature of the liberty being interfered with
and the nature and extent of the interferencerdquo37
In Knowlton police in Edmonton cordoned off an area as part of the security
arrangements for the visit of Premier Kosygin of the USSR Premier Kosygin had been
assaulted in Ottawa a few days prior to his visit to Edmonton Knowlton entered the
secured area questioning the power of the peace officer to prevent his entry He was
arrested without a warrant and charged with obstructing a peace officer in the execution
of his duties Knowlton argued that the peace officer did not have the power to prevent
his entry and was not acting in the execution of his duty
The Supreme Court of Canada emphasized the heightened importance of security when
there are visiting foreign dignitaries38
It is notorious and of common knowledge that the official visit of the head of state or high rank dignitary of a foreign country friendly as either may be is an event that frequently engenders a real or apprehended threat to the preservation of peace and that calls therefore for the adoption of proper and reasonable security measures in and by the host countryhellipThe restriction of the right of free access of the public to public streetshellipwas one of the steps--not an unusual one--which police authorities considered and adopted as necessary for the attainment of the purpose aforesaid In my opinion such conduct of the police was clearly falling within the general scope of the duties imposed upon them
37 R v Mann [2004] 3 SCR 59 at 7938 Supra note 34 at 447-448
24
In addressing the first part of the Waterfield test the Court referenced provisions of the
Alberta Police Act and the Criminal Code and concluded that the conduct of the peace
officers fell within the general scope of the duties imposed upon them for example
preservation of the peace and prevention of crime39
According to the principles which for the preservation of peace and prevention of crime underlie the provisions of s 30 amongst others of the Criminal Code these official authorities were not only entitled but in duty bound as peace officers to prevent a renewal of a like criminal assault on the person of Premier Kosygin during his official visit in Canada In this respect they had a specific and binding obligation to take proper and reasonable steps The restriction of the right of free access of the public to public streets at the strategic point mentioned above was one of the steps--not an unusual one--which police authorities considered and adopted as necessary for the attainment of the purpose aforesaid In my opinion such conduct of the police was clearly falling within the general scope of the duties imposed upon them
In analyzing the second step of the Waterfield test the Court concluded that there was no
evidence indicating the police officers resorted to an unjustifiable use of the powers
associated with the duties imposed on them
The Court in Knowlton recognized broad police powers to cordon off areas as part of the
security arrangements involving internationally protected persons In addition the Court
found that the warrantless arrest in that case was not an unjustifiable or unreasonable use
of powers associated with the police duties to preserve the peace order public safety and
to enforce the law and prevent crime Finally the Court found that peace officers were
duty bound ldquoto prevent a renewal of a like criminal assault on the person of Premier
Kosygin during his official visit in Canadardquo40 Furthermore it stated the closing of public
39 Ibid 40 Ibid at 447
25
streets ldquowas one of the steps -- not an unusual one -- which police authorities considered
and adopted as necessaryrdquo41
The Knowlton decision clearly acknowledged that the police had the duty and authority to
establish and enforce a secured area to protect a foreign dignitary In order to carry out
these duties the police may do what is reasonably necessary in light of the totality of the
circumstances
Though Knowlton was decided prior to the enactment of the Canadian Charter of Rights
and Freedoms (the ldquoCharterrdquo) this does not in my view affect the clear statement by the
Supreme Court of Canada regarding the duty of the police under the common law and the
Alberta Police Act to provide this security While the facts of Knowlton were quite
compelling in relation to the obvious need to provide adequate security for Premier
Kosygin the decision is equally important authority regarding the general responsibilities
of the police at common law and statute in relation to the preservation of the peace
B Other Statutory Powers
1 Criminal Code
Some specific powers are provided to peace officers pursuant to the Criminal Code42
Section 31 gives peace officers the power to arrest an individual for breach of the peace
Peace officers can arrest those committing the breach of the peace or those who on
reasonable grounds heshe believe are about to join in or renew the breach of the peace
Peace officers also have powers at their disposal under ss 63-69 of the Criminal Code to
deal with the offences of unlawful assembly and riots
41 Ibid at 447-448 42 RSC 1985 c C-46
26
2 Trespass to Property Act
The Ontario Trespass to Property Act43 is a potential source of police power to arrest
without warrant those who are unlawfully on certain premises or who were recently
unlawfully on the premises and refuse to give their name and address44 This statute
deals with illegal entry into both private and public property by creating the offence of
trespass for those who without the express permission of the occupier enter on to
premises or engage in an activity on the premises when it is prohibited by the statute45
Though this statute is primarily used by private property owners to keep unwanted people
off of their property it has also been invoked by the Speaker of the House46 and by the
City of Toronto47 It must be noted however that using the Trespass to Property Act in
relation to removing individuals from ldquopublicrdquo places may raise Charter issues48
3 Foreign Missions and International Organizations Act
The RCMP as peace officers have the general duty to preserve the peace and prevent
crime and offences as set out in s 18 of the Royal Canadian Mounted Police Act49
Additional duties found in s 17 of the Royal Canadian Mounted Police Regulations
198850 include the protection of ldquointernationally protected personsrdquo as defined in s 2 of
the Criminal Code Internationally protected persons include heads of state and their
43 RSO 1990 c T2144 Ibid ss 9(1) 1045 Ibid s 2(1)46R v Behrens [2004] OJ No 5135 (CJ) The Court held that the issue of the trespass notices fell under the Speakerrsquos parliamentary privilege and were not reviewable even on the basis of a Charter argument47R v Semple [2004] OJ No 2137 (CJ)48 In R v Semple the defendants were charged under the Ontario Trespass to Property Act for entering the grounds of Toronto City Hall after being banned from doing so In the end the Court held that the defendantsrsquo peaceful entry onto the grounds was an expression as per s 2(b) of the Charter Torontorsquos notice under the Act infringed on this freedom and in these circumstances it could not be justified under s 1 of the Charter 49 RSC 1985 c R-1050 SOR88-361
27
family members The RCMPrsquos duty to protect internationally protected persons is also
found in s 6(1) of the Security Offences Act51
In addition Canada is a signatory of the United Nations Convention on the Prevention
and Punishment of Crimes against Internationally Protected Persons including
Diplomatic Agents52 This Convention provides that the Government of Canada must
protect visiting heads of state or government foreign ministers representatives or
officials of a state or any official or other agent of an international organization of an
intergovernmental character and the family members that accompany him or her The
RCMP has the responsibility to carry out these security measures
Pursuant to s 101(1) of the FMIOA ldquoThe Royal Canadian Mounted Police has the
primary responsibility to ensure the security for the proper functioning of any
intergovernmental conference in which two or more states participate that is attended by
persons granted privileges and immunities under this Act and to which an order made or
continued under this Act appliesrdquo
The powers to carry out this mandate are found in s 101(2) of the FMIOA ldquothe Royal
Canadian Mounted Police may take appropriate measures including controlling limiting
or prohibiting access to any area to the extent and in a manner that is reasonable in the
circumstancesrdquo It is noteworthy that the FMIOA has legislated the same powers
provided to the police under common law and statute
In order to trigger the RCMP powers described in s 101 the Governor in Council on the
51 RSC 1985 c S-752 UNGA Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons including Diplomatic Agents 20 February 1977 UN Doc I-15410
28
recommendation of the Minister of Foreign Affairs and pursuant to s 5 of the FMIOA
made the G8 Summit Privileges and Immunities Order 201053 on December 10 2009
This order was repealed and a subsequent order54 was made on January 13 2010 A
similar order55 for the G20 Summit was made on March 11 201056
Therefore during the G20 the RCMP had the specific statutory power to limit or
prohibit access to any area and to any extent as long as the measures were appropriate
and done in a manner that was reasonable in the circumstances ldquoThe RCMP may secure
the perimeter of the security zone on land with fencing and restrict access to this zone
through the use of checkpoints and other measuresrdquo57
Though not invoked during the G20 s 101(4) of the FMIOA provides that arrangements
can be entered into with a province concerning the responsibilities of members of the
RCMP and members of the provincial and municipal police forces with respect to
ensuring the security for the proper functioning of an intergovernmental conference No
information was provided to me as to why such an arrangement was not entered into for
the G20
These intergovernmental security provisions of the FMIOA were enacted just prior to the
G8 being held in Kananaskis Alberta in 2002 In light of violent protests at international
events and the 911 terrorist attacks in the United States the Federal Government
53 SOR2009-33654 SOR2010-1355 SOR2010-6256 Supra note 17 ldquoUpon such an Order being made the RCMP in co-operation and collaboration with other police forces becomes impressed with the primary responsibility of ensuring not only the protection of the IPPs but also ensuring lsquosecurity for the proper functioningrsquo of the intergovernmental conference To that end the FMIOA provides that the lsquoappropriate measures including controlling limiting or prohibiting access to any area to the extent and in a manner that is reasonable in the circumstancesrsquo may be takenrdquo57 Ibid
29
considered it timely ldquoto clarify in statute the present common law authority for police to
provide security and protection for high profile international eventsrdquo58 At such events it
was intended that ldquothe RCMP is the lead to make sure that security is providedrdquo59
Given that it was clearly the intention of the Federal Government to have the RCMP as
the lead police force at these international events consideration should be given to
expand the use of the FMIOA to cover all large scale international events such as the
Olympics the Pan American Games and international trade fairs as these events are
routinely attended by heads of state and senior government officials Most recently
Vancouver held the 2010 Olympic and Paralympic Winter Games60 Though federal and
municipal legislation were passed to assist in securing the Games expansion and
application of the FMIOA would have been a better approach The RCMP as the national
police force ought to be in charge pursuant to their authority under the FMIOA
4 Emergency Legislation
Through my consultations with the parties listed in Appendix 2 I heard that while we are
not in a time of war as in 1939 when the PWPA was enacted we live in an age of
international and local terrorism threats Our democratic society must be vigilant in
58 Canada House of Commons Debates 37th Parl 1st Sess No 93 (5 October 2001) at 100059 Canada House of Commons Standing Committee on Public Safety and National Security 40th Parl 3rd
Sess Evidence (25 October 2010)60 In anticipation of this event the Governor General in Council on the recommendation of the Minister of Transport pursuant to the Aeronautics Act (RSC 1985 c A-2) and the Canadian Air Transport Security Authority Act (SC 2002 c 9 s 2) passed the Vancouver 2010 Aviation Security Regulations (SOR2009-298) The purpose of the regulations was to enhance aviation security during the Games The Regulation provided for extra security and extra authorized means to conduct screenings In addition the Vancouver City Council passed the very lengthy By-law No 9962 known as the ldquoVancouver 2010 Olympic and Paralympic Winter Games By-Lawrdquo Specific security measures to be employed at a city live site (described thoroughly in a Schedule to the By-Law) that were enabled by this By-Law included The installation and monitoring of airport style and other security measures including magnetometers and X-ray machines the installation and monitoring of closed circuit television cameras the searching of any person who wished to enter on to a city live site and any bag luggage or other container carried by such person and the prohibiting of access to or removal from a city live site any person who refused to submit to a search
30
maintaining a proper level of security while recognizing that democratic values and
security issues can conflict where public order is at issue It is important to highlight that
provincial legislation exists dealing with both terrorism threats and emergency situations
I have been informed that federal and provincial counter-terrorism plans exist that
address preventing and responding to acts of terrorism
The Police Services Act regulations mandate police forces to establish procedures
consistent with federal and provincial counter-terrorism plans61 and to have policies with
respect to counter-terrorism62 In addition the Emergency Management and Civil
Protection Act allows for orders to be made in situations specifically designated an
ldquoemergencyrdquo63 by the Lieutenant Governor in Council or the Premier that regulate or
prohibit travel and movement to from or within any specified area64 Therefore the
PWPA is not needed to deal with these emergency situations as specific more recent
emergency legislation is in place for that very purpose
C Gaps in Canadian Police Powers
The Ministry of Community Safety and Correctional Services provided me with an
interesting article published in 2010 entitled ldquoThe Gap in Canadian Police Powers
61 Adequacy and Effectiveness of Police Services O Reg 399 s 2862 Ibid s 2963 Section 1 of the Emergency Management and Civil Protection Act defines an ldquoemergencyrdquo as ldquoemergencyrdquo means a situation or an impending situation that constitutes a danger of major proportions that could result in serious harm to persons or substantial damage to property and that is caused by the forces of nature a disease or other health risk an accident or an act whether intentional or otherwise (ldquosituation drsquourgencerdquo)64 RSO 1990 c E9 s 702(4)
31
Canada needs lsquoPublic Order Policingrsquo Legislationrdquo and co-authored by Wesley Pue and
Robert Diab65
This article was prompted by the debate over the cost nature and extent of security to be
employed at the Vancouver 2010 Winter Olympics The authors criticized the fact that
policing authorities in Canada ldquolack specific statutory authorization to take measures
commonly thought necessary to their missionrdquo66 These measures included security
fences in public areas designated protest areas restricted access to public space police
surveillance and searches without cause
The authors recognize that such powers may be necessary but note that ldquono legislature
has ever expressly conferred such powers on policing authorities outside the context of
international intergovernmental conferences Nor does the common law accord such
powers to state officials on its ownrdquo67 I respectfully disagree with this latter statement
It is my view the police have powers pursuant to the common law and statute as I have
discussed in the preceding section
The authors referred to R v Knowlton68 which I have previously discussed While the
authors give Knowlton a very narrow interpretation stating that ldquoits binding principle is a
good deal narrower than the words taken out of context might suggestrdquo69 I however am
of the view that the decision supports the proposition that police have a broad range of
65 Wesley Pue and Robert Diab ldquoThe Gap In Canadian Police Powers Canada Needs lsquoPublic Order Policingrsquo Legislationrdquo (2010) 28 Windsor Rev Legal Soc Issues 87 Wesley Pue is a professor of legal history at the University of British Columbia and Robert Diab is a PhD candidate at the UBC Faculty of Law66 Ibid p 8867 Ibid68 Supra note 3469 Supra note 65 p 92
32
responsibilities with deep historical roots in the common law and codified in statute a
position shared by the Federal Government when it introduced amendments to the
FMIOA The actions of the police in Knowlton were necessarily incidental to their
common law police duties and powers
The authors conclude that this ldquoauthority of police to create zones of exclusion either as
an incident of the general and ancient duties of constableshelliphas never been established in
the courtsrdquo70 I am of the view however that the role of the police in establishing
security zones relating to a crime a serious accident or other emergency is a routine and
well-accepted use of police powers pursuant to their common law and statutory duties I
am not suggesting that this common law authority permits the police to establish security
zones ldquofor the proper functioning of any intergovernmental conference in which two or
more states participaterdquo71 larger than necessary to fulfill their purpose The FMIOA as
amended in 2002 provides the RCMP with ldquoprimary responsibility to ensure the security
for the proper functioning of the intergovernmental conferencerdquo72 It is interesting
however that when the Federal Government was enacting this specific authority the
legislative debates indicated that the government was merely clarifying ldquoin statute the
present common law authority for police to provide security and protection for high
profile international eventsrdquo73
Security perimeters are routinely erected by police in the context of the commission of a
crime motor vehicle and other accidents as well as the Santa Claus parade and other
70 Ibid p 9671 Supra note 8 s 101(1)72 Ibid73 Supra note 58
33
parades It would in my view be quite impractical and unnecessary to legislate an
extensive code of police powers given their common law and statutory responsibilities to
generally maintain public order It is not advisable in my opinion to be prescriptive in
any way regarding what actions the police can take since they must assess what the
situation warrants while at the same time considering individual rights and freedoms
The details of any police response to an emergency must be tailored to the exigencies
related to the situation
The police clearly have common law and statutory authority to conduct warrantless
searches in specific situations (ldquoin exigent circumstancesrdquo)74 However when
warrantless searches must be carried out on a regular routine basis the police are acting
more like full time security guards and there should be specific statutory authority
provided to give such powers
I certainly accept the general proposition the authors assert that the mobility rights of
citizens should not be unreasonably or unfairly dealt with However one only need be
aware of the massive amount of construction taking place on the streets of Toronto as this
Report is being written to appreciate that it is not always reasonable to expect that ldquothe
rights of businesses homeowners and ordinary citizens to go about their routine
activities without interruptionrdquo75 will go unhindered While generally desirable it cannot
be legally guaranteed At the same time the authors do concede that ldquoimportant as they
74 Supra note 42 s 4871175 Supra note 65 p 89
34
are the rights of assembly movement and protest are not unqualified They can ndash and
should ndash be balanced against other important public needsrdquo76
In my view public policing at times requires innovation as it often benefits from
creative problem solving If police abuse their common law powers related to ldquopublic
order policingrdquo they are accountable to a multiplicity of authorities and the rule of law
most particularly the Charter The legal rights outlined in the Charter such as ldquothe
principles of fundamental justicerdquo77 security ldquoagainst unreasonable search and seizurerdquo78
and ldquothe right not to be arbitrarily detained or imprisonedrdquo79 are described very
generally However they were chosen deliberately as it was recognized that in each case
there is an inherent tension between imposing security measures and fundamental rights
and freedoms Determining which is paramount will be based on the facts of each case
76 Ibid p 9177 Canadian Charter of Rights and Freedoms s 7 Part I of the Constitution Act 1982 being Schedule B to the Canada Act 1982 (UK) 1982 c 1178 Ibid s 879 Ibid s 9
35
SECTION 5 LEGAL ANALYSIS OF THE PUBLIC WORKS PROTECTION ACT
A Legal Analysis of the Legislation
Many stakeholders have questioned the constitutional validity of the PWPA and O Reg
23310 The Ontario Ombudsman seriously questioned whether O Reg 23310 could
pass ldquoconstitutional musterrdquo80 The CCLA suggested that the broad police powers
granted under the PWPA were inconsistent with the Charter81
To the same effect were comments made by Premier Dalton McGuinty who described
the PWPA as ldquoan archaic law that was used to undermine Torontoniansrsquo civil rights
during the G20rdquo82 He elaborated83
The issue is whether itrsquos appropriate given our present-day values and given an old law which I am confident doesnrsquot strike the balance that you and I would want today in terms of public safety and individual freedom of expressionhellipWhen you start talking about civil rights individual freedoms yoursquore talking about those things that in fact define us as a free and democratic societyhellipItrsquos something that is real and meaningful and important to all of us
The Terms of Reference for this Review do not require that I conduct a constitutional
analysis of the PWPA I have however been asked to consider areas for reform and if
appropriate make specific recommendations for amendment or repeal This does require
that I therefore consider whether the legislation may be vulnerable to constitutional
challenge
Section 2(b) of the Charter guarantees everyone the fundamental freedom of expression
The definition of ldquoexpressionrdquo has been interpreted broadly ldquoActivity is expressive if it
80 Supra note 32 at para 23381 Supra note 26 p 982 Robert Benzie and Rob Ferguson ldquoMcGuinty shifts focus to fixing G20 lawrdquo Toronto Star (10 December 2010) online thestarcom lthttpwwwthestarcomnewscanadaarticle905436--mcguinty-shifts-focus-to-fixing-g20-lawgt 83 Ibid
36
attempts to convey meaningrdquo84 While freedom of expression is not absolute there is
very little that is not considered expression However expression that advocates violence
is not protected under s 2(b)85
The Supreme Court of Canada in Committee for the Commonwealth of Canada v
Canada held that s 2(b) ldquodoes not encompass the right to use any and all government
property for purposes of disseminating onersquos views on public matters but I have no doubt
that it does include the right to use for that purpose streets and parks which are dedicated
to the use of the public subject no doubt to reasonable regulation to ensure their
continued use for the purposes to which they are dedicatedrdquo86 It seems clear that
protesting in public streets is a form of expression protected by s 2(b) Protesting at an
intergovernmental conference is clearly expressive in nature
In challenges alleging that a statute contravenes s 2(b) of the Charter a court would
examine whether the purpose or effect of a law contravenes section 2(b)87 There is no
reason to suggest that the purpose of the PWPA was to infringe the freedom of
expression The purpose of the PWPA is to protect important public infrastructures A
court would then have to consider whether the effect of the PWPA may have resulted in
an infringement of freedom of expression
O Reg 23310 defined significant portions of downtown Toronto as a ldquopublic workrdquo
Section 3(c) of the PWPA allows peace officers to refuse entry into public works which
therefore limits the areas in which protesters could express themselves By creating the
84 Irwin Toy Ltd v Queacutebec (Attorney General) [1989] 1 SCR 927 at 96885 Ibid at 97086 [1991] 1 SCR 139 at 165-16687 Peter Hogg Constitutional Law of Canada loose-leaf (consulted on 7 January 2011) 5th ed (Toronto Thomson Reuters Canada Limited 2007) at 43-6
37
relatively large security perimeter designated by the regulation individuals may allege
they were not permitted to communicate directly with those they were protesting against
Furthermore individuals could not communicate in public places such as public streets
where the right to freedom of expression has previously been found to exist88
Commissioner Ted Hughes completed an interim report following a public hearing into
the complaints regarding events that took place with respect to the Asia Pacific Economic
Cooperation (APEC) Conference in Vancouver British Columbia in November 1997
Commissioner Hughes recommended that generous opportunity should be afforded to
peaceful protesters to be seen in their protest activities by guests at the event89
Section 7 of the Charter provides that ldquoEveryone has the right to life liberty and security
of the person and the right not to be deprived thereof except in accordance with the
principles of fundamental justicerdquo The PWPA raises issues regarding the liberty and
security of the person in providing for warrantless searches and stopping for
identification Furthermore vague laws offend two fundamental values of our legal
system90 Firstly individuals are not provided with sufficient guidance as to what
behaviour a law prohibits Secondly those in charge of enforcing the law are not
provided with clear guidance as to how to enforce it A vague law can lead to inconsistent
and arbitrary enforcement91
88 Supra note 86 89 Canada Commission for Public Complaints Against the RCMP APEC ndash Commission Interim Report (31 July 2001) at s 3111 (Commissioner Ted Hughes QC) online Commission for Public Complaints Against the RCMP lthttpwwwcpc-cppgccaprrrepphrapecapec-31-engaspxgt90 Supra note 87 at 47-60 91 ldquoA vague provision does not provide an adequate basis for legal debate that is for reaching a conclusion as to its meaning by reasoned analysis applying legal criteria It does not sufficiently delineate any area of risk and thus can provide neither fair notice to the citizen nor a limitation of enforcement discretion Such
38
As described by Professor Hogg92
The requirement that any limit on rights be prescribed by law reflects two values that are basic to constitutionalism or the rule of law First in order to preclude arbitrary and discriminatory action by government officials all official action in derogation of rights must be authorized by law Secondly citizens must have reasonable opportunity to know what is prohibited so that they can act accordingly Both these values are satisfied by a law that fulfils two requirements (1) the law must be adequately accessible to the public and (2) the law must be formulated with sufficient precision to enable people to regulate their conduct by it and to provide guidance to those who apply the law
As I stated earlier the phrase ldquoany approach theretordquo contained in s 3(a) of the PWPA is
potentially vague No criteria are provided to assist in determining when one is on ldquoany
approach theretordquo A phrase such as ldquoany approach theretordquo is subject to many potential
interpretations It is arguable that this language does not provide reasonable guidance for
individuals to obey the law and for the law to be consistently enforced
Section 8 of the Charter provides that ldquoEveryone has the right to be secure against
unreasonable search or seizurerdquo A warrantless search or seizure is only reasonable if the
search was authorized by law the law itself is reasonable and the manner in which the
search carried out was reasonable93 The fact that no reasonable or probable suspicions
are needed to carry out a search pursuant to s 3(b) of the PWPA raises some issues The
only prerequisite to such a search is that the person or vehicle being subjected to a search
is entering or attempting to enter a public work
a provision is not intelligible to use the terminology of previous decisions of this Court and therefore it fails to give sufficient indications that could fuel a legal debaterdquo (R v Nova Scotia Pharmaceutical Society [1992] 2 SCR 606 at 639-640) 92 Supra note 87 at 38-1293 R v Nolet [2010] SCJ No 24 at para 21
39
Whether the PWPArsquos s 3(b) authority to undertake warrantless searches is ldquoreasonablerdquo
depends on the reasonableness of the impact on the subject of the search ldquoThe
individuals reasonable expectation of privacy must of course be balanced against the
public interest in effective law enforcementrdquo94 It is harder to justify a warrantless search
where the reasonable expectation of privacy is higher For example interference with
bodily integrity will raise the standard of reasonableness Conversely in situations where
people expect to have a lower level of privacy the standard to prove reasonableness is
lower
One rightfully has some expectation of privacy when in public but it does not rise to the
level of privacy that one expects in onersquos home The expectation of privacy further
decreases when one attempts to enter a ldquopublic workrdquo especially in the context of a
secured barrier to an intergovernmental conference
Section 9 of the Charter provides that ldquoEveryone has the right not to be arbitrarily
detained or imprisonedrdquo95 Under s 3(a) of the PWPA a person entering or attempting to
enter or approach a public work must provide his or her name and address and state the
purpose for which he or she desires to enter the public work In order for a guard or
peace officer to carry out this duty the guard or peace officer may ldquostoprdquo the person from
further approaching or entering the public work and the person is not permitted under the
statute to decide not to enter By so doing it is arguable the guard or peace officer has
assumed control over the movement of the individual by a demand or direction The
94 R v Rao [1984] OJ No 3180 at para 79 (CA)95 ldquoDetention under s 9hellipof the Charter refers to a suspension of the individualrsquos liberty interest by a significant physical or psychological restraint Psychological detention is established either where the individual has a legal obligation to comply with the restrictive request or demand or a reasonable person would conclude by reason of the state conduct that he or she had no choice but to complyrdquo (R v Grant [2009] SCJ No 32 at para 44)
40
PWPA provides for a significant legal consequence if the demand or direction is not
followed since ldquoEvery person who neglects or refuses to comply with a request or
direction made under this Act by a guard or peace officer and every person found upon a
public work or any approach thereto without lawful authority the proof whereof lies on
him or her is guilty of an offence and on conviction is liable to a fine of not more than
$500 or to imprisonment for a term of not more than two months or to bothrdquo96
Pursuant to s 3(b) of the PWPA a guard or peace officer may search any person entering
or attempting to enter a public work These searches would necessitate the detention of a
person If a guard or peace officer performs such a search he or she has taken control
over the movement of the person by a demand or direction The same serious legal
consequence results from failing to obey this demand or direction as that which results
from failing to obey the demand or direction pursuant to s 3(a) of the PWPA As a
result ldquodetentionsrdquo could occur pursuant to both s 3(a) and s 3(b) of the PWPA
The question that would need to be addressed in any challenge to the PWPA is whether
the detentions permitted by the PWPA are arbitrary in nature The use of the term ldquoany
approach theretordquo is vague and imprecise A person could be deemed to be on ldquoany
approach theretordquo a great distance from the entrance of a public work and their detention
might very well be arbitrary In addition the fact that the guards and peace officers
determine the boundaries of the ldquoapproachesrdquo which cannot be contested seems
arbitrary as well as who they chose to search
96 It should be noted that not all communications with state authorities and police officers will amount to a detention The question is whether a person may reasonably believe that he or she is free to refuse to comply
41
Section 11(d) of the Charter provides that ldquoAny person charged with an offence has the
right to be presumed innocent until proven guilty according to law in a fair and public
hearing by an independent and impartial tribunalrdquo This requires that the Crown have the
burden of proving the guilt of an individual charged with an offence97 Provisions that
place the burden on the accused to disprove on the balance of probabilities an essential
element of an offence raises s 11(d) concerns because convictions would be possible
even if reasonable doubt existed98 The presumption of innocence is not only infringed
upon by a requirement that an accused disprove an essential element of an offence but
also any requirement on an accused to prove a fact on the balance of probabilities to
avoid conviction
Section 5(1) of the PWPA states that ldquoEvery person who neglects or refuses to comply
with a request or direction made under this Act by a guard or peace officer and every
person found upon a public work or any approach thereto without lawful authority the
proof whereof lies on him or her is guilty of an offence and on conviction is liable to a
fine of not more than $500 or to imprisonment for a term of not more than two months or
to bothrdquo For the offence of being found upon a public work or on any approach to a
public work without lawful authority the burden of proof has been ldquoshiftedrdquo from the
Crown to the accused to prove lawful authority
As the foregoing analysis reveals there are certainly many concerns that arise when one
places the PWPA under the lens of the Charter However the rights and freedoms
provided by the Charter are not absolute They are ldquosubject only to such reasonable
97 R v Oakes [1986] 1 SCR 10398 Ibid at 132
42
limits prescribed by law as can be demonstrably justified in a free and democratic
societyrdquo99
In assessing whether a law which infringes the Charter is saved by s 1 a court examines
both the object of the law and the measures taken to achieve that objective A lawrsquos
objective achieves the status of being sufficiently important to justify overriding a
Charter right only when it is consistent with the values of a free and democratic society
The objective must relate to pressing and substantial concerns and not concerns that are
trivial and must be focussed on ldquothe realization of collective goals of fundamental
importancerdquo100 The measures adopted must be ldquorationally connectedrdquo to the objective of
the law101 The measures ldquoshould impair lsquoas little as possiblersquo the right or freedom in
questionrdquo102 Furthermore there must be ldquoa proportionality between the effects of the
measures which are responsible for limiting the Charter right or freedom and the
objective which has been identified as of lsquosufficient importancersquordquo103
An issue that may affect whether the potential limitation on rights and freedoms of the
PWPA and O Reg 23310 were ldquoprescribed by lawrdquo is whether the regulation was
adequately accessible to the public The Ontario Ombudsman the CCLA and the Ontario
Bar Association (ldquoOBArdquo) all noted a lack of notice regarding O Reg 23310 and its
effects prior to and during the G20 While the text of the regulation was available prior
99 Charter s 1 The Superior Court of Quebec decision of Tremblay v Queacutebec (Attorney General) [2001] JQ No 1504 (CS) involved an interim injunction brought by an applicant who was denied entry into the secured perimeter during the 2001 Summit of the Americas in Queacutebec City The applicant sought an injunction to either eliminate the security barrier or to be given a pass to let him within the secured perimeter Even though the Court held that the erection of the security zone violated the applicantrsquos right to freedom of expression and peaceful assembly The court held that the infringement was ldquodemonstrably justified in a free and democratic societyrdquo100 Supra note 97 at 136101 Ibid at 139102 Ibid103 Ibid
43
to the G20 it was only available on a website not frequently accessed by the public
Since O Reg 23310 was not published in The Ontario Gazette until after it was
revoked it may be that the regulation was not adequately accessible to the public
Reverse onus offences have been found to be ldquorationally connectedrdquo when there is plainly
a rational connection between the proven fact and the fact to be presumed Reverse
onuses have also been upheld when the burden placed on the Crown would be virtually
impossible to meet (such as proving sanity)104 Even if the accused only has the burden
of disproving the fact that heshe did not have lawful authority to be in a public work or
on an approach thereto there may not be a rational connection between the proven fact
and the fact to be presumed
The history of threats and violence at previous intergovernmental conferences
demonstrated that the protection of G20 participants was a pressing and substantial
concern However given the broadness of the PWPA every exercise of it raises the
potential for Charter scrutiny
Recommendation
Given the public policy considerations I have raised regarding the PWPA and Charter
concerns that could arise I recommend that the PWPA be repealed after the Province has
considered potential policy and security gaps as a result of its repeal
B Other uses of the Public Works Protection Act
It appears from my consultations with stakeholder groups that if the PWPA is repealed
104 R v Chaulk [1990] 3 SCR 1303 at 1340
44
there are two areas which may require legislation to provide specific peace officer
powers These two areas are court security and the protection of nuclear power facilities
and other power generating infrastructures
1 Court Security
During my decade as Ontariorsquos Attorney General (1975 to 1985) there were three
murders in provincial courthouses as well as many threats to members of courthouse staff
and others As violent acts in courthouses can be anticipated courtroom security is often
required
Individuals are compelled to go to court for a variety of reasons such as appearing as an
accused as a witness or for jury duty To provide protection to those who work there or
are compelled to attend an adequate level of court security may require a search without
warrant of each and every individual who seeks to enter a courthouse It is not reasonable
to require prior judicial authorization for each search that takes place
The courts have considered the constitutionality of these provisions of the PWPA in
conjunction with section 137 of the Ontario Police Services Act in the context of court
security
Section 137 of the Ontario Police Services Act imposes a responsibility on municipal
police services boards to secure the premises where court proceedings are conducted and
includes
1 Ensuring the security of judges and of persons taking part in or attending proceedings
45
2 During the hours when judges and members of the public are normally present ensuring the security of the premises
3 Ensuring the secure custody of persons in custody who are on or about the premises including persons taken into custody at proceedings
4 Determining appropriate levels of security for the purposes of paragraphs 1 2 and 3
In R v Campanella105 Ms Campanella was attending the John Sopinka Courthouse in
Hamilton At the courthouse there were signs posted stating that those who entered
would be searched for weapons When Ms Campanellarsquos bag was searched marijuana
was found and she was charged with the possession of marijuana She argued that her s
8 Charter protection against unreasonable search and seizure had been violated and the
marijuana discovered during the search should therefore be excluded as evidence The
trial judge and the summary convictions appeal court rejected the section 8 Charter
argument and the appellant appealed to the Ontario Court of Appeal
The Ontario Court of Appeal agreed that ldquogiven the importance of the government
objective and the context in which these searches take place it is reasonable to authorize
warrantless searches of those entering courthouse facilitiesrdquo106 The Court stated ldquothe
only effective way to diminish the risk in a large courthouse is to subject everyone
without prior security clearance to some kind of inspection I can see no other feasible
means of achieving the aimrdquo107
The Court also pointed out the concern relating to the erosion of the benefits and
105 [2002] OJ No 5104 (SCJ) affrsquod [2005] OJ No 1345 (CA) [ldquoCampanellardquo]106 R v Campanella [2005] OJ No 1345 at para 17 (CA)107 Ibid at para 19
46
protections conferred by s 8 of the Charter108
I am sensitive to the concern that we should not erode the benefits and protections of s 8 by gradually sanctioning ever-greater intrusions into privacy because of unfounded fears We should not lightly accept that searches in public places are justified solely because people have become used to them and expect them However the record in this case establishes the justification for the kinds of searches carried out in this case
Ultimately the appeal was dismissed and s 137 of the Police Services Act and s 3(b) of
the PWPA) were held to comply with s 8 of the Charter109
In its consultations with me the OBA similarly stated that the existing nature of court
security is necessary and is generally ldquowell toleratedrdquo At the same time however it
submits that the security regime should not be ldquoshoehornedrdquo into the PWPA regime and
that it would be preferable to provide a legislative framework tailored for the specific
security requirements While the PWPA has been relied upon as support for the exercise
of powers by the police in providing court security the OBA submits that the PWPArsquos
ldquosingle security schemerdquo which declares something a ldquopublic workrdquo is an ldquoawkward
blunt instrument in a world where more specialized tools are necessaryrdquo When
warrantless searches are being done on a routine basis it is advisable to have specific
legislation providing peace officers with such power
Recommendation
Court security legislation is currently in place in many jurisdictions across Canada and
contain provisions that permit warrantless searches of persons wanting to access a
108 Ibid at para 25109 The Court in R v SS [2005] OJ No 5002 (SCJ) agreed with the findings and rationale of the Court of Appeal in Campanella
47
courthouse The constitutional validity of such legislation in Manitoba was upheld by that
provincersquos highest court110
Given the ongoing need for warrantless searches at courthouses the Province of Ontario
should consider specific court security legislation in Ontario to support the security
measures in our courthouses if the PWPA is to be repealed taking into consideration the
responsibilities of the municipal police services boards provided in s 137 of the Police
Services Act This legislation should only be passed after proper notice consultation and
legislative debate
2 Power Generating Infrastructures
It is clear from the submissions that I received from representatives of OPG and the
Canadian Nuclear Safety Commission (ldquoCNSCrdquo) that the PWPA currently plays a role in
providing security officers with the powers to secure power generating infrastructures
including the ability to carry firearms and the ability to stop and require identification
from those in proximity to those nuclear plants
Security is of the utmost importance in protecting a nuclear power plant Members of the
public do not need to access a nuclear or similar power facility unless employed at the
facility or carrying out work for the facility111
The security of areas within nuclear power plants is governed by the Nuclear Security
110 R v Lindsay [2004] MJ No 380 (CA) 111 Though the discussion focuses on nuclear power plants I have been informed that other power generating infrastructures use the PWPA to designate their security officers as guards As a result if the PWPA is repealed it will be necessary to broaden the consultations in relation to these other power generating infrastructures
48
Regulations112 Every nuclear power plant must be located within a ldquoprotected areardquo113
This protected area is the area within a fenced perimeter which is alarmed and
continually patrolled This area must be equipped with devices that employ two
independent systems to detect intrusion into the area114 The Nuclear Security
Regulations also provide detailed specifications for the barrier which must enclose the
protected area115 In addition licensees must ldquoidentify all vital areas and implement
physical protection measures ndash including access control and measures designed to delay
unauthorized accessrdquo116
The Nuclear Security Regulations also provide detailed provisions regarding entry into
protected areas No person can ldquoenter a protected area without physical proof of the
recorded authorization of the licenseerdquo117 Further to this on entry into a protected area
ldquothat personrsquos identity shall be verified by two separate personnel identity verification
systems one of which is an access card reader and the other of which is a biometric
personnel identity verification devicerdquo118 Licensees must also ldquoensure that vehicle
portals are used for the entry and exit of land vehicles into and from a protected areardquo119
Physical protection measures are also required to reduce the chance of a forced land
vehicle entry into a protected area120
The power to conduct searches upon entry to a protected area is also provided by the
112 SOR2000-209 113 Ibid s 8114 Ibid s 11(a)(i)115 Ibid s 9116 Ibid s 141117 Ibid s 17(1)118 Ibid s 171119 Ibid s 91(1)120 Ibid s 91(4)
49
Nuclear Security Regulations Signs must be posted that are visible to people about to
enter the protected area stating that they must allow a nuclear security officer (ldquoNSOrdquo) to
ldquosearch them and everything in their possession including any land vehicle for weapons
and explosive substancesrdquo121 In addition when leaving the protected area people must
allow NSOs to ldquosearch them and everything in their possession including any land
vehicle for Category I II or III nuclear materialrdquo122 People are not permitted to enter or
leave a protected area unless these searches are carried out123 The Nuclear Security
Regulations provide for the method of search including ldquoa hand-held scanner a walk-
through scanner or any similar devicerdquo124 In addition if an NSO determines it
necessary a frisk search can be carried out by a person of the same sex125
I have been informed that the area outside of but adjacent to the ldquoprotected areardquo is
referred to as the ldquocontrolled areardquo This area includes roadways and waterways within
the nuclear facilityrsquos property boundaries adjacent to or in close proximity to the nuclear
power plantrsquos protected area and may be generally accessible to the public
As a result of the September 11 2001 terrorist attacks the Nuclear Security Regulations
were amended to require that high security nuclear facilities maintain an on-site armed
Nuclear Response Force (ldquoNRFrdquo)126 The NRF is composed of specialized NSOs
Section 32 of the Nuclear Security Regulations requires the NRF to be capable of making
an effective intervention taking into account the threat
121 Ibid s 27(1)(a)122 Ibid s 27(1)(b)123 Ibid s 27(2)124 Ibid s 27(5)(a)125 Ibid s 27(5)(b)126 Ibid s 32
50
Members of the NRF are mandated by the Nuclear Security Regulations to be ldquotrained in
the use of firearms authorized to carry firearms in Canada and qualified to use themrdquo127
However to satisfy this requirement the NRF resorts to the PWPA since the federal
regulations do not authorize the NRF to carry firearms without a licence However
under s 2(1) of the PWPA NSOs are designated as ldquoguardsrdquo with the powers of a peace
officer most significantly to carry and use firearms without having to be licensed128
Such a designation also enables the OPG to acquire and dispose of firearms
In the consultations I had with the OPG and the CNSC they advised me that NSOs
receive training equivalent to Canadian police standards and that NRF officers receive
training equivalent to federal and provincial police tactical team requirements
Another aspect of the PWPA used to secure nuclear power plants relates to powers
exercised by NSOs in ldquocontrolled areasrdquo The federal regulations do not provide the
NSOs with any power to demand identification within this area However pursuant to
the PWPA as appointed ldquoguardsrdquo the NSOs have the power to demand identity
verification in the controlled area They also have the authority to arrest anyone who
obstructs NSOs in the performance of their duties under the PWPA
In addition to using the PWPA to secure the controlled areas I have been advised by the
OPG that NSOs use powers pursuant to the PWPA to secure areas within 100 metres of a
nuclear facilityrsquos property line immediately adjacent to the controlled area These powers
are exercised under the broad language of the PWPA regarding ldquoapproaches to public
127 Ibid s 1 (on-site nuclear response force definition)128 Section 11707 of the Criminal Code exempts peace officers from licensing requirements for possessing firearms and other prohibited and restricted weapons
51
worksrdquo This is an illustration of the problem with the vagueness of this language in the
legislation As these powers are exercised on public land they could be challenged as a
potential infringement on individual rights and freedoms However I have been advised
that there have been no such incidents to date The need to ensure the security of these
facilities must be taken into the balance
NSOs must be able to monitor and control access to the controlled areas and areas close
to a nuclear power plantrsquos property line This provides for a more secure perimeter
around these facilities They need authority to challenge individuals acting in a suspicious
manner or conducting surveillance of nuclear facilities The OPG has informed me that
areas outside a nuclear facilityrsquos property line immediately adjacent to the controlled
area are still close enough to take advantage of the short distance to conduct intelligence
using high-powered surveillance equipment These nuclear power plants are not located
on isolated islands and are therefore vulnerable Both the Pickering Nuclear Generating
Station and the Darlington Nuclear Generating Station operate within major urban areas
being 30 km and 60 km east of downtown Toronto respectively I am advised that
previous events such as ldquoThe Toronto 18rdquo129 have shown that those intent on targeting
vital infrastructure such as power generating facilities often use reconnaissance and
intelligence gathering as precursor tactics
Recommendation
If the PWPA is to be repealed it is imperative that those who secure our nuclear and
power generating facilities be given the requisite specific legislative powers to do so
129 See for example ldquoLast 2 Toronto 18 accused found guiltyrdquo CBC News (23 June 2010) online cbcca lthttpwwwcbccanewscanadatorontostory20100623toronto-18-verdicthtmlgt
52
The source for these powers should be set out in the federal Nuclear Security
Regulations However if this is not a desired option the Government of Ontario must
consider specific legislation setting out the specific powers required to properly secure
these facilities and the specific location in which these powers can be exercised Such
legislation should not be passed without proper notice consultation and legislative
debate
53
SECTION 6 CONCLUSION
The PWPA was enacted in 1939 to support the war effort At the time the protection of
Ontariorsquos hydroelectric facilities from sabotage was of particular concern Since then the
PWPA has been used to provide the legal foundation for the powers exercised by the
police in providing court security and even more recently by the OPG in securing
nuclear power facilities In June 2010 the PWPA was used to provide powers to secure
intergovernmental conferences The vagueness of the PWPA permits it to be used in
situations when it is arguably not necessary and potentially abusive In my view the
PWPA has been used for purposes beyond its original intent
The time for the PWPA seems to have passed If the Government of Ontario enacts as I
have suggested specific legislation to provide for courthouse security and power
generating infrastructure security it would appear that there is no longer a need for the
PWPA I am also mindful of the existence of counter-terrorism and emergencies
legislation to deal with these situations as they arise
ldquoIn determining the boundaries of police powers caution is required to ensure the proper
balance between preventing excessive intrusions on an individualrsquos liberty and privacy
and enabling the police to do what is reasonably necessary to perform their duties in
protecting the publicrdquo130 The overly broad and vague language of the PWPA does not
strike this required balance with individual rights and freedoms
The late Justice Jackson of the United States Supreme Court stated that every
emergency power once conferred ldquolies about like a loaded weapon ready for the hand of
130 R v Clayton [2007] 2 SCR 725 at 742
54
any authority that can bring forward a plausible claim of an urgent needrdquo131 The need to
protect the public must be balanced with the requirement to preserve fundamental rights
and freedoms
Yet at the same time ldquoCanadians are entitled to demand the best public order policing
possible from their governmentrdquo132 There is no question that we live in a different world
post 911 We live in difficult times with constant threats both domestically and from
abroad The police clearly need to be given adequate powers to carry out their duties
The police use their expertise on a daily basis to assess the powers they require In
instances when they take action that exceeds their powers their actions are examined by
various mandated bodies This process I believe results in the proper balance between
police powers and individual rights and freedoms Therefore any legislation that purports
to grant special police powers must be specific and direct and developed in consultation
with stakeholders and tested through thorough debate in our transparent democratic
system
131 Korematsu v United States 323 US 214 (1944)132 Supra note 26 p 8
55
The report of the CCLA called for the repeal or significant amendment to the PWPA ldquoto
meet basic constitutional standardsrdquo27 The CCLA ldquosuggests that the broad police powers
granted under the Act are inconsistent with current Charter requirementsrdquo28
I agree with the observation of the CCLA that the provisions of the PWPA led to a ldquolack
of clarity as to the scope of the search and seizure powersrdquo29 which created many
difficulties and conflicts that probably could have been avoided I would also certainly
agree with a conclusory comment in this preliminary report that ldquoit is the duty of police
officers to act with fairness and equanimity toward all citizens in accordance with the law
of the country The presumption of innocence and the protection against arbitrary arrests
and detention are at the core of a commitment to justicerdquo30
The CCLA in partnership with the National Union of Public Employees organized
public hearings for two days in Toronto and one day in Montreal in November of 2010
which they referred to as a Citizens Inquiry The Citizens Inquiry heard from 63 members
of the public who had witnessed policing incidents or had been detained Several lawyers
and academics also participated in the hearing and offered commentary on the events of
the G20 from a legal or policing perspective including issues related to the PWPA A
report of the hearings titled ldquoG20 Toronto Breach of the Peace Public Hearingsrdquo was
released on February 28 2011 which also referred to the PWPA31
27 Ibid p 2228 Ibid p 929 Ibid p 1230 Ibid p 2131 Canadian Civil Liberties Association and the National Union of Public and General Employees G20 Toronto Breach of the Peace Public Hearings February 2011 online Canadian Civil Liberties Association lthttpcclaorgwordpresswp-contentuploads201102Breach-of-the-Peace-Final-Reportpdfgt
21
2 The Ontario Ombudsman Report
The Ontario Ombudsman commenced an investigation after receiving complaints relating
to a variety of issues concerning the G20 The Marin Report recognized that ldquotypically
international summits attract protests and protests can turn violent and even deadlyrdquo32
The report therefore does not quarrel with the requirement that a high level of security is
required for such events
The report in my view accurately describes the PWPA as ldquounique in Canada in terms of
the breadth of its reach and the powers it confershellipno other Canadian statute defining
lsquopublic worksrsquo contains provisions similar to those found in Ontariorsquos Actrdquo33
32 Ontario Ombudsman report Investigation into The Ministry of Community Safety and Correctional Servicesrsquo Conduct in Relation to Ontario Regulation 23310 under the Public Works Protection Act ldquoCaught in the Actrdquo by Andreacute Marin (Toronto Ombudsman of Ontario December 2010) online Ombudsman of Ontario lthttpwwwombudsmanoncamedia157555g20final1-enpdfgt (ldquoMarin Reportrdquo) at para 733 Ibid at para 97
22
SECTION 4 POWERS OF THE POLICE
Pursuant to the Terms of Reference I have been asked to consider for future purposes
whether the powers given to peace officers and guards under the PWPA are necessary to
protect public works secure intergovernmental conferences or for any other purposes
To answer that question it is necessary to assess whether the current common law and
statutory regime provide the police with sufficient powers to perform these vital services
A Common Law Powers and Powers Pursuant to Police Services Acts
The police have extensive common law powers that can be used in protecting and
securing intergovernmental conferences and in protecting public works It is necessary to
examine those powers in order to assess whether and what if any additional powers are
needed such as those provided by the PWPA
Of particular assistance in this regard is R v Knowlton34 where the Supreme Court of
Canada considered whether the powers possessed by peace officers at common law and
statute in securing an area for the protection of a foreign dignitary were lawful The
Supreme Court of Canada held that in order for the exercise of peace officer powers to be
lawful the powers must satisfy the two step test set out in R v Waterfield35 First the
power must be in furtherance of a lawful duty Traditional common law peace officer
duties include the preservation of the peace and the prevention of crime These common
law police duties amongst others are now statutorily enshrined in s 42(1) of Ontariorsquos
Police Services Act (and other provincial police services acts)36 The second part of the
test requires an evaluation of whether the conduct of the peace officer was ldquojustifiedrdquo To
34 [1974] SCR 443 [ldquoKnowltonrdquo]35 See for example R v Dedman [1985] 2 SCR 236 RSO 1990 c P15
23
do so one applies the standard of what is reasonably necessary in light of the totality of
the circumstances In evaluating whether the conduct of the peace officer was justified it
is important to consider ldquothe duty being performed the extent to which some interference
with individual liberty is necessary in the performance of that duty the importance of the
performance of the duty to the public good the nature of the liberty being interfered with
and the nature and extent of the interferencerdquo37
In Knowlton police in Edmonton cordoned off an area as part of the security
arrangements for the visit of Premier Kosygin of the USSR Premier Kosygin had been
assaulted in Ottawa a few days prior to his visit to Edmonton Knowlton entered the
secured area questioning the power of the peace officer to prevent his entry He was
arrested without a warrant and charged with obstructing a peace officer in the execution
of his duties Knowlton argued that the peace officer did not have the power to prevent
his entry and was not acting in the execution of his duty
The Supreme Court of Canada emphasized the heightened importance of security when
there are visiting foreign dignitaries38
It is notorious and of common knowledge that the official visit of the head of state or high rank dignitary of a foreign country friendly as either may be is an event that frequently engenders a real or apprehended threat to the preservation of peace and that calls therefore for the adoption of proper and reasonable security measures in and by the host countryhellipThe restriction of the right of free access of the public to public streetshellipwas one of the steps--not an unusual one--which police authorities considered and adopted as necessary for the attainment of the purpose aforesaid In my opinion such conduct of the police was clearly falling within the general scope of the duties imposed upon them
37 R v Mann [2004] 3 SCR 59 at 7938 Supra note 34 at 447-448
24
In addressing the first part of the Waterfield test the Court referenced provisions of the
Alberta Police Act and the Criminal Code and concluded that the conduct of the peace
officers fell within the general scope of the duties imposed upon them for example
preservation of the peace and prevention of crime39
According to the principles which for the preservation of peace and prevention of crime underlie the provisions of s 30 amongst others of the Criminal Code these official authorities were not only entitled but in duty bound as peace officers to prevent a renewal of a like criminal assault on the person of Premier Kosygin during his official visit in Canada In this respect they had a specific and binding obligation to take proper and reasonable steps The restriction of the right of free access of the public to public streets at the strategic point mentioned above was one of the steps--not an unusual one--which police authorities considered and adopted as necessary for the attainment of the purpose aforesaid In my opinion such conduct of the police was clearly falling within the general scope of the duties imposed upon them
In analyzing the second step of the Waterfield test the Court concluded that there was no
evidence indicating the police officers resorted to an unjustifiable use of the powers
associated with the duties imposed on them
The Court in Knowlton recognized broad police powers to cordon off areas as part of the
security arrangements involving internationally protected persons In addition the Court
found that the warrantless arrest in that case was not an unjustifiable or unreasonable use
of powers associated with the police duties to preserve the peace order public safety and
to enforce the law and prevent crime Finally the Court found that peace officers were
duty bound ldquoto prevent a renewal of a like criminal assault on the person of Premier
Kosygin during his official visit in Canadardquo40 Furthermore it stated the closing of public
39 Ibid 40 Ibid at 447
25
streets ldquowas one of the steps -- not an unusual one -- which police authorities considered
and adopted as necessaryrdquo41
The Knowlton decision clearly acknowledged that the police had the duty and authority to
establish and enforce a secured area to protect a foreign dignitary In order to carry out
these duties the police may do what is reasonably necessary in light of the totality of the
circumstances
Though Knowlton was decided prior to the enactment of the Canadian Charter of Rights
and Freedoms (the ldquoCharterrdquo) this does not in my view affect the clear statement by the
Supreme Court of Canada regarding the duty of the police under the common law and the
Alberta Police Act to provide this security While the facts of Knowlton were quite
compelling in relation to the obvious need to provide adequate security for Premier
Kosygin the decision is equally important authority regarding the general responsibilities
of the police at common law and statute in relation to the preservation of the peace
B Other Statutory Powers
1 Criminal Code
Some specific powers are provided to peace officers pursuant to the Criminal Code42
Section 31 gives peace officers the power to arrest an individual for breach of the peace
Peace officers can arrest those committing the breach of the peace or those who on
reasonable grounds heshe believe are about to join in or renew the breach of the peace
Peace officers also have powers at their disposal under ss 63-69 of the Criminal Code to
deal with the offences of unlawful assembly and riots
41 Ibid at 447-448 42 RSC 1985 c C-46
26
2 Trespass to Property Act
The Ontario Trespass to Property Act43 is a potential source of police power to arrest
without warrant those who are unlawfully on certain premises or who were recently
unlawfully on the premises and refuse to give their name and address44 This statute
deals with illegal entry into both private and public property by creating the offence of
trespass for those who without the express permission of the occupier enter on to
premises or engage in an activity on the premises when it is prohibited by the statute45
Though this statute is primarily used by private property owners to keep unwanted people
off of their property it has also been invoked by the Speaker of the House46 and by the
City of Toronto47 It must be noted however that using the Trespass to Property Act in
relation to removing individuals from ldquopublicrdquo places may raise Charter issues48
3 Foreign Missions and International Organizations Act
The RCMP as peace officers have the general duty to preserve the peace and prevent
crime and offences as set out in s 18 of the Royal Canadian Mounted Police Act49
Additional duties found in s 17 of the Royal Canadian Mounted Police Regulations
198850 include the protection of ldquointernationally protected personsrdquo as defined in s 2 of
the Criminal Code Internationally protected persons include heads of state and their
43 RSO 1990 c T2144 Ibid ss 9(1) 1045 Ibid s 2(1)46R v Behrens [2004] OJ No 5135 (CJ) The Court held that the issue of the trespass notices fell under the Speakerrsquos parliamentary privilege and were not reviewable even on the basis of a Charter argument47R v Semple [2004] OJ No 2137 (CJ)48 In R v Semple the defendants were charged under the Ontario Trespass to Property Act for entering the grounds of Toronto City Hall after being banned from doing so In the end the Court held that the defendantsrsquo peaceful entry onto the grounds was an expression as per s 2(b) of the Charter Torontorsquos notice under the Act infringed on this freedom and in these circumstances it could not be justified under s 1 of the Charter 49 RSC 1985 c R-1050 SOR88-361
27
family members The RCMPrsquos duty to protect internationally protected persons is also
found in s 6(1) of the Security Offences Act51
In addition Canada is a signatory of the United Nations Convention on the Prevention
and Punishment of Crimes against Internationally Protected Persons including
Diplomatic Agents52 This Convention provides that the Government of Canada must
protect visiting heads of state or government foreign ministers representatives or
officials of a state or any official or other agent of an international organization of an
intergovernmental character and the family members that accompany him or her The
RCMP has the responsibility to carry out these security measures
Pursuant to s 101(1) of the FMIOA ldquoThe Royal Canadian Mounted Police has the
primary responsibility to ensure the security for the proper functioning of any
intergovernmental conference in which two or more states participate that is attended by
persons granted privileges and immunities under this Act and to which an order made or
continued under this Act appliesrdquo
The powers to carry out this mandate are found in s 101(2) of the FMIOA ldquothe Royal
Canadian Mounted Police may take appropriate measures including controlling limiting
or prohibiting access to any area to the extent and in a manner that is reasonable in the
circumstancesrdquo It is noteworthy that the FMIOA has legislated the same powers
provided to the police under common law and statute
In order to trigger the RCMP powers described in s 101 the Governor in Council on the
51 RSC 1985 c S-752 UNGA Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons including Diplomatic Agents 20 February 1977 UN Doc I-15410
28
recommendation of the Minister of Foreign Affairs and pursuant to s 5 of the FMIOA
made the G8 Summit Privileges and Immunities Order 201053 on December 10 2009
This order was repealed and a subsequent order54 was made on January 13 2010 A
similar order55 for the G20 Summit was made on March 11 201056
Therefore during the G20 the RCMP had the specific statutory power to limit or
prohibit access to any area and to any extent as long as the measures were appropriate
and done in a manner that was reasonable in the circumstances ldquoThe RCMP may secure
the perimeter of the security zone on land with fencing and restrict access to this zone
through the use of checkpoints and other measuresrdquo57
Though not invoked during the G20 s 101(4) of the FMIOA provides that arrangements
can be entered into with a province concerning the responsibilities of members of the
RCMP and members of the provincial and municipal police forces with respect to
ensuring the security for the proper functioning of an intergovernmental conference No
information was provided to me as to why such an arrangement was not entered into for
the G20
These intergovernmental security provisions of the FMIOA were enacted just prior to the
G8 being held in Kananaskis Alberta in 2002 In light of violent protests at international
events and the 911 terrorist attacks in the United States the Federal Government
53 SOR2009-33654 SOR2010-1355 SOR2010-6256 Supra note 17 ldquoUpon such an Order being made the RCMP in co-operation and collaboration with other police forces becomes impressed with the primary responsibility of ensuring not only the protection of the IPPs but also ensuring lsquosecurity for the proper functioningrsquo of the intergovernmental conference To that end the FMIOA provides that the lsquoappropriate measures including controlling limiting or prohibiting access to any area to the extent and in a manner that is reasonable in the circumstancesrsquo may be takenrdquo57 Ibid
29
considered it timely ldquoto clarify in statute the present common law authority for police to
provide security and protection for high profile international eventsrdquo58 At such events it
was intended that ldquothe RCMP is the lead to make sure that security is providedrdquo59
Given that it was clearly the intention of the Federal Government to have the RCMP as
the lead police force at these international events consideration should be given to
expand the use of the FMIOA to cover all large scale international events such as the
Olympics the Pan American Games and international trade fairs as these events are
routinely attended by heads of state and senior government officials Most recently
Vancouver held the 2010 Olympic and Paralympic Winter Games60 Though federal and
municipal legislation were passed to assist in securing the Games expansion and
application of the FMIOA would have been a better approach The RCMP as the national
police force ought to be in charge pursuant to their authority under the FMIOA
4 Emergency Legislation
Through my consultations with the parties listed in Appendix 2 I heard that while we are
not in a time of war as in 1939 when the PWPA was enacted we live in an age of
international and local terrorism threats Our democratic society must be vigilant in
58 Canada House of Commons Debates 37th Parl 1st Sess No 93 (5 October 2001) at 100059 Canada House of Commons Standing Committee on Public Safety and National Security 40th Parl 3rd
Sess Evidence (25 October 2010)60 In anticipation of this event the Governor General in Council on the recommendation of the Minister of Transport pursuant to the Aeronautics Act (RSC 1985 c A-2) and the Canadian Air Transport Security Authority Act (SC 2002 c 9 s 2) passed the Vancouver 2010 Aviation Security Regulations (SOR2009-298) The purpose of the regulations was to enhance aviation security during the Games The Regulation provided for extra security and extra authorized means to conduct screenings In addition the Vancouver City Council passed the very lengthy By-law No 9962 known as the ldquoVancouver 2010 Olympic and Paralympic Winter Games By-Lawrdquo Specific security measures to be employed at a city live site (described thoroughly in a Schedule to the By-Law) that were enabled by this By-Law included The installation and monitoring of airport style and other security measures including magnetometers and X-ray machines the installation and monitoring of closed circuit television cameras the searching of any person who wished to enter on to a city live site and any bag luggage or other container carried by such person and the prohibiting of access to or removal from a city live site any person who refused to submit to a search
30
maintaining a proper level of security while recognizing that democratic values and
security issues can conflict where public order is at issue It is important to highlight that
provincial legislation exists dealing with both terrorism threats and emergency situations
I have been informed that federal and provincial counter-terrorism plans exist that
address preventing and responding to acts of terrorism
The Police Services Act regulations mandate police forces to establish procedures
consistent with federal and provincial counter-terrorism plans61 and to have policies with
respect to counter-terrorism62 In addition the Emergency Management and Civil
Protection Act allows for orders to be made in situations specifically designated an
ldquoemergencyrdquo63 by the Lieutenant Governor in Council or the Premier that regulate or
prohibit travel and movement to from or within any specified area64 Therefore the
PWPA is not needed to deal with these emergency situations as specific more recent
emergency legislation is in place for that very purpose
C Gaps in Canadian Police Powers
The Ministry of Community Safety and Correctional Services provided me with an
interesting article published in 2010 entitled ldquoThe Gap in Canadian Police Powers
61 Adequacy and Effectiveness of Police Services O Reg 399 s 2862 Ibid s 2963 Section 1 of the Emergency Management and Civil Protection Act defines an ldquoemergencyrdquo as ldquoemergencyrdquo means a situation or an impending situation that constitutes a danger of major proportions that could result in serious harm to persons or substantial damage to property and that is caused by the forces of nature a disease or other health risk an accident or an act whether intentional or otherwise (ldquosituation drsquourgencerdquo)64 RSO 1990 c E9 s 702(4)
31
Canada needs lsquoPublic Order Policingrsquo Legislationrdquo and co-authored by Wesley Pue and
Robert Diab65
This article was prompted by the debate over the cost nature and extent of security to be
employed at the Vancouver 2010 Winter Olympics The authors criticized the fact that
policing authorities in Canada ldquolack specific statutory authorization to take measures
commonly thought necessary to their missionrdquo66 These measures included security
fences in public areas designated protest areas restricted access to public space police
surveillance and searches without cause
The authors recognize that such powers may be necessary but note that ldquono legislature
has ever expressly conferred such powers on policing authorities outside the context of
international intergovernmental conferences Nor does the common law accord such
powers to state officials on its ownrdquo67 I respectfully disagree with this latter statement
It is my view the police have powers pursuant to the common law and statute as I have
discussed in the preceding section
The authors referred to R v Knowlton68 which I have previously discussed While the
authors give Knowlton a very narrow interpretation stating that ldquoits binding principle is a
good deal narrower than the words taken out of context might suggestrdquo69 I however am
of the view that the decision supports the proposition that police have a broad range of
65 Wesley Pue and Robert Diab ldquoThe Gap In Canadian Police Powers Canada Needs lsquoPublic Order Policingrsquo Legislationrdquo (2010) 28 Windsor Rev Legal Soc Issues 87 Wesley Pue is a professor of legal history at the University of British Columbia and Robert Diab is a PhD candidate at the UBC Faculty of Law66 Ibid p 8867 Ibid68 Supra note 3469 Supra note 65 p 92
32
responsibilities with deep historical roots in the common law and codified in statute a
position shared by the Federal Government when it introduced amendments to the
FMIOA The actions of the police in Knowlton were necessarily incidental to their
common law police duties and powers
The authors conclude that this ldquoauthority of police to create zones of exclusion either as
an incident of the general and ancient duties of constableshelliphas never been established in
the courtsrdquo70 I am of the view however that the role of the police in establishing
security zones relating to a crime a serious accident or other emergency is a routine and
well-accepted use of police powers pursuant to their common law and statutory duties I
am not suggesting that this common law authority permits the police to establish security
zones ldquofor the proper functioning of any intergovernmental conference in which two or
more states participaterdquo71 larger than necessary to fulfill their purpose The FMIOA as
amended in 2002 provides the RCMP with ldquoprimary responsibility to ensure the security
for the proper functioning of the intergovernmental conferencerdquo72 It is interesting
however that when the Federal Government was enacting this specific authority the
legislative debates indicated that the government was merely clarifying ldquoin statute the
present common law authority for police to provide security and protection for high
profile international eventsrdquo73
Security perimeters are routinely erected by police in the context of the commission of a
crime motor vehicle and other accidents as well as the Santa Claus parade and other
70 Ibid p 9671 Supra note 8 s 101(1)72 Ibid73 Supra note 58
33
parades It would in my view be quite impractical and unnecessary to legislate an
extensive code of police powers given their common law and statutory responsibilities to
generally maintain public order It is not advisable in my opinion to be prescriptive in
any way regarding what actions the police can take since they must assess what the
situation warrants while at the same time considering individual rights and freedoms
The details of any police response to an emergency must be tailored to the exigencies
related to the situation
The police clearly have common law and statutory authority to conduct warrantless
searches in specific situations (ldquoin exigent circumstancesrdquo)74 However when
warrantless searches must be carried out on a regular routine basis the police are acting
more like full time security guards and there should be specific statutory authority
provided to give such powers
I certainly accept the general proposition the authors assert that the mobility rights of
citizens should not be unreasonably or unfairly dealt with However one only need be
aware of the massive amount of construction taking place on the streets of Toronto as this
Report is being written to appreciate that it is not always reasonable to expect that ldquothe
rights of businesses homeowners and ordinary citizens to go about their routine
activities without interruptionrdquo75 will go unhindered While generally desirable it cannot
be legally guaranteed At the same time the authors do concede that ldquoimportant as they
74 Supra note 42 s 4871175 Supra note 65 p 89
34
are the rights of assembly movement and protest are not unqualified They can ndash and
should ndash be balanced against other important public needsrdquo76
In my view public policing at times requires innovation as it often benefits from
creative problem solving If police abuse their common law powers related to ldquopublic
order policingrdquo they are accountable to a multiplicity of authorities and the rule of law
most particularly the Charter The legal rights outlined in the Charter such as ldquothe
principles of fundamental justicerdquo77 security ldquoagainst unreasonable search and seizurerdquo78
and ldquothe right not to be arbitrarily detained or imprisonedrdquo79 are described very
generally However they were chosen deliberately as it was recognized that in each case
there is an inherent tension between imposing security measures and fundamental rights
and freedoms Determining which is paramount will be based on the facts of each case
76 Ibid p 9177 Canadian Charter of Rights and Freedoms s 7 Part I of the Constitution Act 1982 being Schedule B to the Canada Act 1982 (UK) 1982 c 1178 Ibid s 879 Ibid s 9
35
SECTION 5 LEGAL ANALYSIS OF THE PUBLIC WORKS PROTECTION ACT
A Legal Analysis of the Legislation
Many stakeholders have questioned the constitutional validity of the PWPA and O Reg
23310 The Ontario Ombudsman seriously questioned whether O Reg 23310 could
pass ldquoconstitutional musterrdquo80 The CCLA suggested that the broad police powers
granted under the PWPA were inconsistent with the Charter81
To the same effect were comments made by Premier Dalton McGuinty who described
the PWPA as ldquoan archaic law that was used to undermine Torontoniansrsquo civil rights
during the G20rdquo82 He elaborated83
The issue is whether itrsquos appropriate given our present-day values and given an old law which I am confident doesnrsquot strike the balance that you and I would want today in terms of public safety and individual freedom of expressionhellipWhen you start talking about civil rights individual freedoms yoursquore talking about those things that in fact define us as a free and democratic societyhellipItrsquos something that is real and meaningful and important to all of us
The Terms of Reference for this Review do not require that I conduct a constitutional
analysis of the PWPA I have however been asked to consider areas for reform and if
appropriate make specific recommendations for amendment or repeal This does require
that I therefore consider whether the legislation may be vulnerable to constitutional
challenge
Section 2(b) of the Charter guarantees everyone the fundamental freedom of expression
The definition of ldquoexpressionrdquo has been interpreted broadly ldquoActivity is expressive if it
80 Supra note 32 at para 23381 Supra note 26 p 982 Robert Benzie and Rob Ferguson ldquoMcGuinty shifts focus to fixing G20 lawrdquo Toronto Star (10 December 2010) online thestarcom lthttpwwwthestarcomnewscanadaarticle905436--mcguinty-shifts-focus-to-fixing-g20-lawgt 83 Ibid
36
attempts to convey meaningrdquo84 While freedom of expression is not absolute there is
very little that is not considered expression However expression that advocates violence
is not protected under s 2(b)85
The Supreme Court of Canada in Committee for the Commonwealth of Canada v
Canada held that s 2(b) ldquodoes not encompass the right to use any and all government
property for purposes of disseminating onersquos views on public matters but I have no doubt
that it does include the right to use for that purpose streets and parks which are dedicated
to the use of the public subject no doubt to reasonable regulation to ensure their
continued use for the purposes to which they are dedicatedrdquo86 It seems clear that
protesting in public streets is a form of expression protected by s 2(b) Protesting at an
intergovernmental conference is clearly expressive in nature
In challenges alleging that a statute contravenes s 2(b) of the Charter a court would
examine whether the purpose or effect of a law contravenes section 2(b)87 There is no
reason to suggest that the purpose of the PWPA was to infringe the freedom of
expression The purpose of the PWPA is to protect important public infrastructures A
court would then have to consider whether the effect of the PWPA may have resulted in
an infringement of freedom of expression
O Reg 23310 defined significant portions of downtown Toronto as a ldquopublic workrdquo
Section 3(c) of the PWPA allows peace officers to refuse entry into public works which
therefore limits the areas in which protesters could express themselves By creating the
84 Irwin Toy Ltd v Queacutebec (Attorney General) [1989] 1 SCR 927 at 96885 Ibid at 97086 [1991] 1 SCR 139 at 165-16687 Peter Hogg Constitutional Law of Canada loose-leaf (consulted on 7 January 2011) 5th ed (Toronto Thomson Reuters Canada Limited 2007) at 43-6
37
relatively large security perimeter designated by the regulation individuals may allege
they were not permitted to communicate directly with those they were protesting against
Furthermore individuals could not communicate in public places such as public streets
where the right to freedom of expression has previously been found to exist88
Commissioner Ted Hughes completed an interim report following a public hearing into
the complaints regarding events that took place with respect to the Asia Pacific Economic
Cooperation (APEC) Conference in Vancouver British Columbia in November 1997
Commissioner Hughes recommended that generous opportunity should be afforded to
peaceful protesters to be seen in their protest activities by guests at the event89
Section 7 of the Charter provides that ldquoEveryone has the right to life liberty and security
of the person and the right not to be deprived thereof except in accordance with the
principles of fundamental justicerdquo The PWPA raises issues regarding the liberty and
security of the person in providing for warrantless searches and stopping for
identification Furthermore vague laws offend two fundamental values of our legal
system90 Firstly individuals are not provided with sufficient guidance as to what
behaviour a law prohibits Secondly those in charge of enforcing the law are not
provided with clear guidance as to how to enforce it A vague law can lead to inconsistent
and arbitrary enforcement91
88 Supra note 86 89 Canada Commission for Public Complaints Against the RCMP APEC ndash Commission Interim Report (31 July 2001) at s 3111 (Commissioner Ted Hughes QC) online Commission for Public Complaints Against the RCMP lthttpwwwcpc-cppgccaprrrepphrapecapec-31-engaspxgt90 Supra note 87 at 47-60 91 ldquoA vague provision does not provide an adequate basis for legal debate that is for reaching a conclusion as to its meaning by reasoned analysis applying legal criteria It does not sufficiently delineate any area of risk and thus can provide neither fair notice to the citizen nor a limitation of enforcement discretion Such
38
As described by Professor Hogg92
The requirement that any limit on rights be prescribed by law reflects two values that are basic to constitutionalism or the rule of law First in order to preclude arbitrary and discriminatory action by government officials all official action in derogation of rights must be authorized by law Secondly citizens must have reasonable opportunity to know what is prohibited so that they can act accordingly Both these values are satisfied by a law that fulfils two requirements (1) the law must be adequately accessible to the public and (2) the law must be formulated with sufficient precision to enable people to regulate their conduct by it and to provide guidance to those who apply the law
As I stated earlier the phrase ldquoany approach theretordquo contained in s 3(a) of the PWPA is
potentially vague No criteria are provided to assist in determining when one is on ldquoany
approach theretordquo A phrase such as ldquoany approach theretordquo is subject to many potential
interpretations It is arguable that this language does not provide reasonable guidance for
individuals to obey the law and for the law to be consistently enforced
Section 8 of the Charter provides that ldquoEveryone has the right to be secure against
unreasonable search or seizurerdquo A warrantless search or seizure is only reasonable if the
search was authorized by law the law itself is reasonable and the manner in which the
search carried out was reasonable93 The fact that no reasonable or probable suspicions
are needed to carry out a search pursuant to s 3(b) of the PWPA raises some issues The
only prerequisite to such a search is that the person or vehicle being subjected to a search
is entering or attempting to enter a public work
a provision is not intelligible to use the terminology of previous decisions of this Court and therefore it fails to give sufficient indications that could fuel a legal debaterdquo (R v Nova Scotia Pharmaceutical Society [1992] 2 SCR 606 at 639-640) 92 Supra note 87 at 38-1293 R v Nolet [2010] SCJ No 24 at para 21
39
Whether the PWPArsquos s 3(b) authority to undertake warrantless searches is ldquoreasonablerdquo
depends on the reasonableness of the impact on the subject of the search ldquoThe
individuals reasonable expectation of privacy must of course be balanced against the
public interest in effective law enforcementrdquo94 It is harder to justify a warrantless search
where the reasonable expectation of privacy is higher For example interference with
bodily integrity will raise the standard of reasonableness Conversely in situations where
people expect to have a lower level of privacy the standard to prove reasonableness is
lower
One rightfully has some expectation of privacy when in public but it does not rise to the
level of privacy that one expects in onersquos home The expectation of privacy further
decreases when one attempts to enter a ldquopublic workrdquo especially in the context of a
secured barrier to an intergovernmental conference
Section 9 of the Charter provides that ldquoEveryone has the right not to be arbitrarily
detained or imprisonedrdquo95 Under s 3(a) of the PWPA a person entering or attempting to
enter or approach a public work must provide his or her name and address and state the
purpose for which he or she desires to enter the public work In order for a guard or
peace officer to carry out this duty the guard or peace officer may ldquostoprdquo the person from
further approaching or entering the public work and the person is not permitted under the
statute to decide not to enter By so doing it is arguable the guard or peace officer has
assumed control over the movement of the individual by a demand or direction The
94 R v Rao [1984] OJ No 3180 at para 79 (CA)95 ldquoDetention under s 9hellipof the Charter refers to a suspension of the individualrsquos liberty interest by a significant physical or psychological restraint Psychological detention is established either where the individual has a legal obligation to comply with the restrictive request or demand or a reasonable person would conclude by reason of the state conduct that he or she had no choice but to complyrdquo (R v Grant [2009] SCJ No 32 at para 44)
40
PWPA provides for a significant legal consequence if the demand or direction is not
followed since ldquoEvery person who neglects or refuses to comply with a request or
direction made under this Act by a guard or peace officer and every person found upon a
public work or any approach thereto without lawful authority the proof whereof lies on
him or her is guilty of an offence and on conviction is liable to a fine of not more than
$500 or to imprisonment for a term of not more than two months or to bothrdquo96
Pursuant to s 3(b) of the PWPA a guard or peace officer may search any person entering
or attempting to enter a public work These searches would necessitate the detention of a
person If a guard or peace officer performs such a search he or she has taken control
over the movement of the person by a demand or direction The same serious legal
consequence results from failing to obey this demand or direction as that which results
from failing to obey the demand or direction pursuant to s 3(a) of the PWPA As a
result ldquodetentionsrdquo could occur pursuant to both s 3(a) and s 3(b) of the PWPA
The question that would need to be addressed in any challenge to the PWPA is whether
the detentions permitted by the PWPA are arbitrary in nature The use of the term ldquoany
approach theretordquo is vague and imprecise A person could be deemed to be on ldquoany
approach theretordquo a great distance from the entrance of a public work and their detention
might very well be arbitrary In addition the fact that the guards and peace officers
determine the boundaries of the ldquoapproachesrdquo which cannot be contested seems
arbitrary as well as who they chose to search
96 It should be noted that not all communications with state authorities and police officers will amount to a detention The question is whether a person may reasonably believe that he or she is free to refuse to comply
41
Section 11(d) of the Charter provides that ldquoAny person charged with an offence has the
right to be presumed innocent until proven guilty according to law in a fair and public
hearing by an independent and impartial tribunalrdquo This requires that the Crown have the
burden of proving the guilt of an individual charged with an offence97 Provisions that
place the burden on the accused to disprove on the balance of probabilities an essential
element of an offence raises s 11(d) concerns because convictions would be possible
even if reasonable doubt existed98 The presumption of innocence is not only infringed
upon by a requirement that an accused disprove an essential element of an offence but
also any requirement on an accused to prove a fact on the balance of probabilities to
avoid conviction
Section 5(1) of the PWPA states that ldquoEvery person who neglects or refuses to comply
with a request or direction made under this Act by a guard or peace officer and every
person found upon a public work or any approach thereto without lawful authority the
proof whereof lies on him or her is guilty of an offence and on conviction is liable to a
fine of not more than $500 or to imprisonment for a term of not more than two months or
to bothrdquo For the offence of being found upon a public work or on any approach to a
public work without lawful authority the burden of proof has been ldquoshiftedrdquo from the
Crown to the accused to prove lawful authority
As the foregoing analysis reveals there are certainly many concerns that arise when one
places the PWPA under the lens of the Charter However the rights and freedoms
provided by the Charter are not absolute They are ldquosubject only to such reasonable
97 R v Oakes [1986] 1 SCR 10398 Ibid at 132
42
limits prescribed by law as can be demonstrably justified in a free and democratic
societyrdquo99
In assessing whether a law which infringes the Charter is saved by s 1 a court examines
both the object of the law and the measures taken to achieve that objective A lawrsquos
objective achieves the status of being sufficiently important to justify overriding a
Charter right only when it is consistent with the values of a free and democratic society
The objective must relate to pressing and substantial concerns and not concerns that are
trivial and must be focussed on ldquothe realization of collective goals of fundamental
importancerdquo100 The measures adopted must be ldquorationally connectedrdquo to the objective of
the law101 The measures ldquoshould impair lsquoas little as possiblersquo the right or freedom in
questionrdquo102 Furthermore there must be ldquoa proportionality between the effects of the
measures which are responsible for limiting the Charter right or freedom and the
objective which has been identified as of lsquosufficient importancersquordquo103
An issue that may affect whether the potential limitation on rights and freedoms of the
PWPA and O Reg 23310 were ldquoprescribed by lawrdquo is whether the regulation was
adequately accessible to the public The Ontario Ombudsman the CCLA and the Ontario
Bar Association (ldquoOBArdquo) all noted a lack of notice regarding O Reg 23310 and its
effects prior to and during the G20 While the text of the regulation was available prior
99 Charter s 1 The Superior Court of Quebec decision of Tremblay v Queacutebec (Attorney General) [2001] JQ No 1504 (CS) involved an interim injunction brought by an applicant who was denied entry into the secured perimeter during the 2001 Summit of the Americas in Queacutebec City The applicant sought an injunction to either eliminate the security barrier or to be given a pass to let him within the secured perimeter Even though the Court held that the erection of the security zone violated the applicantrsquos right to freedom of expression and peaceful assembly The court held that the infringement was ldquodemonstrably justified in a free and democratic societyrdquo100 Supra note 97 at 136101 Ibid at 139102 Ibid103 Ibid
43
to the G20 it was only available on a website not frequently accessed by the public
Since O Reg 23310 was not published in The Ontario Gazette until after it was
revoked it may be that the regulation was not adequately accessible to the public
Reverse onus offences have been found to be ldquorationally connectedrdquo when there is plainly
a rational connection between the proven fact and the fact to be presumed Reverse
onuses have also been upheld when the burden placed on the Crown would be virtually
impossible to meet (such as proving sanity)104 Even if the accused only has the burden
of disproving the fact that heshe did not have lawful authority to be in a public work or
on an approach thereto there may not be a rational connection between the proven fact
and the fact to be presumed
The history of threats and violence at previous intergovernmental conferences
demonstrated that the protection of G20 participants was a pressing and substantial
concern However given the broadness of the PWPA every exercise of it raises the
potential for Charter scrutiny
Recommendation
Given the public policy considerations I have raised regarding the PWPA and Charter
concerns that could arise I recommend that the PWPA be repealed after the Province has
considered potential policy and security gaps as a result of its repeal
B Other uses of the Public Works Protection Act
It appears from my consultations with stakeholder groups that if the PWPA is repealed
104 R v Chaulk [1990] 3 SCR 1303 at 1340
44
there are two areas which may require legislation to provide specific peace officer
powers These two areas are court security and the protection of nuclear power facilities
and other power generating infrastructures
1 Court Security
During my decade as Ontariorsquos Attorney General (1975 to 1985) there were three
murders in provincial courthouses as well as many threats to members of courthouse staff
and others As violent acts in courthouses can be anticipated courtroom security is often
required
Individuals are compelled to go to court for a variety of reasons such as appearing as an
accused as a witness or for jury duty To provide protection to those who work there or
are compelled to attend an adequate level of court security may require a search without
warrant of each and every individual who seeks to enter a courthouse It is not reasonable
to require prior judicial authorization for each search that takes place
The courts have considered the constitutionality of these provisions of the PWPA in
conjunction with section 137 of the Ontario Police Services Act in the context of court
security
Section 137 of the Ontario Police Services Act imposes a responsibility on municipal
police services boards to secure the premises where court proceedings are conducted and
includes
1 Ensuring the security of judges and of persons taking part in or attending proceedings
45
2 During the hours when judges and members of the public are normally present ensuring the security of the premises
3 Ensuring the secure custody of persons in custody who are on or about the premises including persons taken into custody at proceedings
4 Determining appropriate levels of security for the purposes of paragraphs 1 2 and 3
In R v Campanella105 Ms Campanella was attending the John Sopinka Courthouse in
Hamilton At the courthouse there were signs posted stating that those who entered
would be searched for weapons When Ms Campanellarsquos bag was searched marijuana
was found and she was charged with the possession of marijuana She argued that her s
8 Charter protection against unreasonable search and seizure had been violated and the
marijuana discovered during the search should therefore be excluded as evidence The
trial judge and the summary convictions appeal court rejected the section 8 Charter
argument and the appellant appealed to the Ontario Court of Appeal
The Ontario Court of Appeal agreed that ldquogiven the importance of the government
objective and the context in which these searches take place it is reasonable to authorize
warrantless searches of those entering courthouse facilitiesrdquo106 The Court stated ldquothe
only effective way to diminish the risk in a large courthouse is to subject everyone
without prior security clearance to some kind of inspection I can see no other feasible
means of achieving the aimrdquo107
The Court also pointed out the concern relating to the erosion of the benefits and
105 [2002] OJ No 5104 (SCJ) affrsquod [2005] OJ No 1345 (CA) [ldquoCampanellardquo]106 R v Campanella [2005] OJ No 1345 at para 17 (CA)107 Ibid at para 19
46
protections conferred by s 8 of the Charter108
I am sensitive to the concern that we should not erode the benefits and protections of s 8 by gradually sanctioning ever-greater intrusions into privacy because of unfounded fears We should not lightly accept that searches in public places are justified solely because people have become used to them and expect them However the record in this case establishes the justification for the kinds of searches carried out in this case
Ultimately the appeal was dismissed and s 137 of the Police Services Act and s 3(b) of
the PWPA) were held to comply with s 8 of the Charter109
In its consultations with me the OBA similarly stated that the existing nature of court
security is necessary and is generally ldquowell toleratedrdquo At the same time however it
submits that the security regime should not be ldquoshoehornedrdquo into the PWPA regime and
that it would be preferable to provide a legislative framework tailored for the specific
security requirements While the PWPA has been relied upon as support for the exercise
of powers by the police in providing court security the OBA submits that the PWPArsquos
ldquosingle security schemerdquo which declares something a ldquopublic workrdquo is an ldquoawkward
blunt instrument in a world where more specialized tools are necessaryrdquo When
warrantless searches are being done on a routine basis it is advisable to have specific
legislation providing peace officers with such power
Recommendation
Court security legislation is currently in place in many jurisdictions across Canada and
contain provisions that permit warrantless searches of persons wanting to access a
108 Ibid at para 25109 The Court in R v SS [2005] OJ No 5002 (SCJ) agreed with the findings and rationale of the Court of Appeal in Campanella
47
courthouse The constitutional validity of such legislation in Manitoba was upheld by that
provincersquos highest court110
Given the ongoing need for warrantless searches at courthouses the Province of Ontario
should consider specific court security legislation in Ontario to support the security
measures in our courthouses if the PWPA is to be repealed taking into consideration the
responsibilities of the municipal police services boards provided in s 137 of the Police
Services Act This legislation should only be passed after proper notice consultation and
legislative debate
2 Power Generating Infrastructures
It is clear from the submissions that I received from representatives of OPG and the
Canadian Nuclear Safety Commission (ldquoCNSCrdquo) that the PWPA currently plays a role in
providing security officers with the powers to secure power generating infrastructures
including the ability to carry firearms and the ability to stop and require identification
from those in proximity to those nuclear plants
Security is of the utmost importance in protecting a nuclear power plant Members of the
public do not need to access a nuclear or similar power facility unless employed at the
facility or carrying out work for the facility111
The security of areas within nuclear power plants is governed by the Nuclear Security
110 R v Lindsay [2004] MJ No 380 (CA) 111 Though the discussion focuses on nuclear power plants I have been informed that other power generating infrastructures use the PWPA to designate their security officers as guards As a result if the PWPA is repealed it will be necessary to broaden the consultations in relation to these other power generating infrastructures
48
Regulations112 Every nuclear power plant must be located within a ldquoprotected areardquo113
This protected area is the area within a fenced perimeter which is alarmed and
continually patrolled This area must be equipped with devices that employ two
independent systems to detect intrusion into the area114 The Nuclear Security
Regulations also provide detailed specifications for the barrier which must enclose the
protected area115 In addition licensees must ldquoidentify all vital areas and implement
physical protection measures ndash including access control and measures designed to delay
unauthorized accessrdquo116
The Nuclear Security Regulations also provide detailed provisions regarding entry into
protected areas No person can ldquoenter a protected area without physical proof of the
recorded authorization of the licenseerdquo117 Further to this on entry into a protected area
ldquothat personrsquos identity shall be verified by two separate personnel identity verification
systems one of which is an access card reader and the other of which is a biometric
personnel identity verification devicerdquo118 Licensees must also ldquoensure that vehicle
portals are used for the entry and exit of land vehicles into and from a protected areardquo119
Physical protection measures are also required to reduce the chance of a forced land
vehicle entry into a protected area120
The power to conduct searches upon entry to a protected area is also provided by the
112 SOR2000-209 113 Ibid s 8114 Ibid s 11(a)(i)115 Ibid s 9116 Ibid s 141117 Ibid s 17(1)118 Ibid s 171119 Ibid s 91(1)120 Ibid s 91(4)
49
Nuclear Security Regulations Signs must be posted that are visible to people about to
enter the protected area stating that they must allow a nuclear security officer (ldquoNSOrdquo) to
ldquosearch them and everything in their possession including any land vehicle for weapons
and explosive substancesrdquo121 In addition when leaving the protected area people must
allow NSOs to ldquosearch them and everything in their possession including any land
vehicle for Category I II or III nuclear materialrdquo122 People are not permitted to enter or
leave a protected area unless these searches are carried out123 The Nuclear Security
Regulations provide for the method of search including ldquoa hand-held scanner a walk-
through scanner or any similar devicerdquo124 In addition if an NSO determines it
necessary a frisk search can be carried out by a person of the same sex125
I have been informed that the area outside of but adjacent to the ldquoprotected areardquo is
referred to as the ldquocontrolled areardquo This area includes roadways and waterways within
the nuclear facilityrsquos property boundaries adjacent to or in close proximity to the nuclear
power plantrsquos protected area and may be generally accessible to the public
As a result of the September 11 2001 terrorist attacks the Nuclear Security Regulations
were amended to require that high security nuclear facilities maintain an on-site armed
Nuclear Response Force (ldquoNRFrdquo)126 The NRF is composed of specialized NSOs
Section 32 of the Nuclear Security Regulations requires the NRF to be capable of making
an effective intervention taking into account the threat
121 Ibid s 27(1)(a)122 Ibid s 27(1)(b)123 Ibid s 27(2)124 Ibid s 27(5)(a)125 Ibid s 27(5)(b)126 Ibid s 32
50
Members of the NRF are mandated by the Nuclear Security Regulations to be ldquotrained in
the use of firearms authorized to carry firearms in Canada and qualified to use themrdquo127
However to satisfy this requirement the NRF resorts to the PWPA since the federal
regulations do not authorize the NRF to carry firearms without a licence However
under s 2(1) of the PWPA NSOs are designated as ldquoguardsrdquo with the powers of a peace
officer most significantly to carry and use firearms without having to be licensed128
Such a designation also enables the OPG to acquire and dispose of firearms
In the consultations I had with the OPG and the CNSC they advised me that NSOs
receive training equivalent to Canadian police standards and that NRF officers receive
training equivalent to federal and provincial police tactical team requirements
Another aspect of the PWPA used to secure nuclear power plants relates to powers
exercised by NSOs in ldquocontrolled areasrdquo The federal regulations do not provide the
NSOs with any power to demand identification within this area However pursuant to
the PWPA as appointed ldquoguardsrdquo the NSOs have the power to demand identity
verification in the controlled area They also have the authority to arrest anyone who
obstructs NSOs in the performance of their duties under the PWPA
In addition to using the PWPA to secure the controlled areas I have been advised by the
OPG that NSOs use powers pursuant to the PWPA to secure areas within 100 metres of a
nuclear facilityrsquos property line immediately adjacent to the controlled area These powers
are exercised under the broad language of the PWPA regarding ldquoapproaches to public
127 Ibid s 1 (on-site nuclear response force definition)128 Section 11707 of the Criminal Code exempts peace officers from licensing requirements for possessing firearms and other prohibited and restricted weapons
51
worksrdquo This is an illustration of the problem with the vagueness of this language in the
legislation As these powers are exercised on public land they could be challenged as a
potential infringement on individual rights and freedoms However I have been advised
that there have been no such incidents to date The need to ensure the security of these
facilities must be taken into the balance
NSOs must be able to monitor and control access to the controlled areas and areas close
to a nuclear power plantrsquos property line This provides for a more secure perimeter
around these facilities They need authority to challenge individuals acting in a suspicious
manner or conducting surveillance of nuclear facilities The OPG has informed me that
areas outside a nuclear facilityrsquos property line immediately adjacent to the controlled
area are still close enough to take advantage of the short distance to conduct intelligence
using high-powered surveillance equipment These nuclear power plants are not located
on isolated islands and are therefore vulnerable Both the Pickering Nuclear Generating
Station and the Darlington Nuclear Generating Station operate within major urban areas
being 30 km and 60 km east of downtown Toronto respectively I am advised that
previous events such as ldquoThe Toronto 18rdquo129 have shown that those intent on targeting
vital infrastructure such as power generating facilities often use reconnaissance and
intelligence gathering as precursor tactics
Recommendation
If the PWPA is to be repealed it is imperative that those who secure our nuclear and
power generating facilities be given the requisite specific legislative powers to do so
129 See for example ldquoLast 2 Toronto 18 accused found guiltyrdquo CBC News (23 June 2010) online cbcca lthttpwwwcbccanewscanadatorontostory20100623toronto-18-verdicthtmlgt
52
The source for these powers should be set out in the federal Nuclear Security
Regulations However if this is not a desired option the Government of Ontario must
consider specific legislation setting out the specific powers required to properly secure
these facilities and the specific location in which these powers can be exercised Such
legislation should not be passed without proper notice consultation and legislative
debate
53
SECTION 6 CONCLUSION
The PWPA was enacted in 1939 to support the war effort At the time the protection of
Ontariorsquos hydroelectric facilities from sabotage was of particular concern Since then the
PWPA has been used to provide the legal foundation for the powers exercised by the
police in providing court security and even more recently by the OPG in securing
nuclear power facilities In June 2010 the PWPA was used to provide powers to secure
intergovernmental conferences The vagueness of the PWPA permits it to be used in
situations when it is arguably not necessary and potentially abusive In my view the
PWPA has been used for purposes beyond its original intent
The time for the PWPA seems to have passed If the Government of Ontario enacts as I
have suggested specific legislation to provide for courthouse security and power
generating infrastructure security it would appear that there is no longer a need for the
PWPA I am also mindful of the existence of counter-terrorism and emergencies
legislation to deal with these situations as they arise
ldquoIn determining the boundaries of police powers caution is required to ensure the proper
balance between preventing excessive intrusions on an individualrsquos liberty and privacy
and enabling the police to do what is reasonably necessary to perform their duties in
protecting the publicrdquo130 The overly broad and vague language of the PWPA does not
strike this required balance with individual rights and freedoms
The late Justice Jackson of the United States Supreme Court stated that every
emergency power once conferred ldquolies about like a loaded weapon ready for the hand of
130 R v Clayton [2007] 2 SCR 725 at 742
54
any authority that can bring forward a plausible claim of an urgent needrdquo131 The need to
protect the public must be balanced with the requirement to preserve fundamental rights
and freedoms
Yet at the same time ldquoCanadians are entitled to demand the best public order policing
possible from their governmentrdquo132 There is no question that we live in a different world
post 911 We live in difficult times with constant threats both domestically and from
abroad The police clearly need to be given adequate powers to carry out their duties
The police use their expertise on a daily basis to assess the powers they require In
instances when they take action that exceeds their powers their actions are examined by
various mandated bodies This process I believe results in the proper balance between
police powers and individual rights and freedoms Therefore any legislation that purports
to grant special police powers must be specific and direct and developed in consultation
with stakeholders and tested through thorough debate in our transparent democratic
system
131 Korematsu v United States 323 US 214 (1944)132 Supra note 26 p 8
55
2 The Ontario Ombudsman Report
The Ontario Ombudsman commenced an investigation after receiving complaints relating
to a variety of issues concerning the G20 The Marin Report recognized that ldquotypically
international summits attract protests and protests can turn violent and even deadlyrdquo32
The report therefore does not quarrel with the requirement that a high level of security is
required for such events
The report in my view accurately describes the PWPA as ldquounique in Canada in terms of
the breadth of its reach and the powers it confershellipno other Canadian statute defining
lsquopublic worksrsquo contains provisions similar to those found in Ontariorsquos Actrdquo33
32 Ontario Ombudsman report Investigation into The Ministry of Community Safety and Correctional Servicesrsquo Conduct in Relation to Ontario Regulation 23310 under the Public Works Protection Act ldquoCaught in the Actrdquo by Andreacute Marin (Toronto Ombudsman of Ontario December 2010) online Ombudsman of Ontario lthttpwwwombudsmanoncamedia157555g20final1-enpdfgt (ldquoMarin Reportrdquo) at para 733 Ibid at para 97
22
SECTION 4 POWERS OF THE POLICE
Pursuant to the Terms of Reference I have been asked to consider for future purposes
whether the powers given to peace officers and guards under the PWPA are necessary to
protect public works secure intergovernmental conferences or for any other purposes
To answer that question it is necessary to assess whether the current common law and
statutory regime provide the police with sufficient powers to perform these vital services
A Common Law Powers and Powers Pursuant to Police Services Acts
The police have extensive common law powers that can be used in protecting and
securing intergovernmental conferences and in protecting public works It is necessary to
examine those powers in order to assess whether and what if any additional powers are
needed such as those provided by the PWPA
Of particular assistance in this regard is R v Knowlton34 where the Supreme Court of
Canada considered whether the powers possessed by peace officers at common law and
statute in securing an area for the protection of a foreign dignitary were lawful The
Supreme Court of Canada held that in order for the exercise of peace officer powers to be
lawful the powers must satisfy the two step test set out in R v Waterfield35 First the
power must be in furtherance of a lawful duty Traditional common law peace officer
duties include the preservation of the peace and the prevention of crime These common
law police duties amongst others are now statutorily enshrined in s 42(1) of Ontariorsquos
Police Services Act (and other provincial police services acts)36 The second part of the
test requires an evaluation of whether the conduct of the peace officer was ldquojustifiedrdquo To
34 [1974] SCR 443 [ldquoKnowltonrdquo]35 See for example R v Dedman [1985] 2 SCR 236 RSO 1990 c P15
23
do so one applies the standard of what is reasonably necessary in light of the totality of
the circumstances In evaluating whether the conduct of the peace officer was justified it
is important to consider ldquothe duty being performed the extent to which some interference
with individual liberty is necessary in the performance of that duty the importance of the
performance of the duty to the public good the nature of the liberty being interfered with
and the nature and extent of the interferencerdquo37
In Knowlton police in Edmonton cordoned off an area as part of the security
arrangements for the visit of Premier Kosygin of the USSR Premier Kosygin had been
assaulted in Ottawa a few days prior to his visit to Edmonton Knowlton entered the
secured area questioning the power of the peace officer to prevent his entry He was
arrested without a warrant and charged with obstructing a peace officer in the execution
of his duties Knowlton argued that the peace officer did not have the power to prevent
his entry and was not acting in the execution of his duty
The Supreme Court of Canada emphasized the heightened importance of security when
there are visiting foreign dignitaries38
It is notorious and of common knowledge that the official visit of the head of state or high rank dignitary of a foreign country friendly as either may be is an event that frequently engenders a real or apprehended threat to the preservation of peace and that calls therefore for the adoption of proper and reasonable security measures in and by the host countryhellipThe restriction of the right of free access of the public to public streetshellipwas one of the steps--not an unusual one--which police authorities considered and adopted as necessary for the attainment of the purpose aforesaid In my opinion such conduct of the police was clearly falling within the general scope of the duties imposed upon them
37 R v Mann [2004] 3 SCR 59 at 7938 Supra note 34 at 447-448
24
In addressing the first part of the Waterfield test the Court referenced provisions of the
Alberta Police Act and the Criminal Code and concluded that the conduct of the peace
officers fell within the general scope of the duties imposed upon them for example
preservation of the peace and prevention of crime39
According to the principles which for the preservation of peace and prevention of crime underlie the provisions of s 30 amongst others of the Criminal Code these official authorities were not only entitled but in duty bound as peace officers to prevent a renewal of a like criminal assault on the person of Premier Kosygin during his official visit in Canada In this respect they had a specific and binding obligation to take proper and reasonable steps The restriction of the right of free access of the public to public streets at the strategic point mentioned above was one of the steps--not an unusual one--which police authorities considered and adopted as necessary for the attainment of the purpose aforesaid In my opinion such conduct of the police was clearly falling within the general scope of the duties imposed upon them
In analyzing the second step of the Waterfield test the Court concluded that there was no
evidence indicating the police officers resorted to an unjustifiable use of the powers
associated with the duties imposed on them
The Court in Knowlton recognized broad police powers to cordon off areas as part of the
security arrangements involving internationally protected persons In addition the Court
found that the warrantless arrest in that case was not an unjustifiable or unreasonable use
of powers associated with the police duties to preserve the peace order public safety and
to enforce the law and prevent crime Finally the Court found that peace officers were
duty bound ldquoto prevent a renewal of a like criminal assault on the person of Premier
Kosygin during his official visit in Canadardquo40 Furthermore it stated the closing of public
39 Ibid 40 Ibid at 447
25
streets ldquowas one of the steps -- not an unusual one -- which police authorities considered
and adopted as necessaryrdquo41
The Knowlton decision clearly acknowledged that the police had the duty and authority to
establish and enforce a secured area to protect a foreign dignitary In order to carry out
these duties the police may do what is reasonably necessary in light of the totality of the
circumstances
Though Knowlton was decided prior to the enactment of the Canadian Charter of Rights
and Freedoms (the ldquoCharterrdquo) this does not in my view affect the clear statement by the
Supreme Court of Canada regarding the duty of the police under the common law and the
Alberta Police Act to provide this security While the facts of Knowlton were quite
compelling in relation to the obvious need to provide adequate security for Premier
Kosygin the decision is equally important authority regarding the general responsibilities
of the police at common law and statute in relation to the preservation of the peace
B Other Statutory Powers
1 Criminal Code
Some specific powers are provided to peace officers pursuant to the Criminal Code42
Section 31 gives peace officers the power to arrest an individual for breach of the peace
Peace officers can arrest those committing the breach of the peace or those who on
reasonable grounds heshe believe are about to join in or renew the breach of the peace
Peace officers also have powers at their disposal under ss 63-69 of the Criminal Code to
deal with the offences of unlawful assembly and riots
41 Ibid at 447-448 42 RSC 1985 c C-46
26
2 Trespass to Property Act
The Ontario Trespass to Property Act43 is a potential source of police power to arrest
without warrant those who are unlawfully on certain premises or who were recently
unlawfully on the premises and refuse to give their name and address44 This statute
deals with illegal entry into both private and public property by creating the offence of
trespass for those who without the express permission of the occupier enter on to
premises or engage in an activity on the premises when it is prohibited by the statute45
Though this statute is primarily used by private property owners to keep unwanted people
off of their property it has also been invoked by the Speaker of the House46 and by the
City of Toronto47 It must be noted however that using the Trespass to Property Act in
relation to removing individuals from ldquopublicrdquo places may raise Charter issues48
3 Foreign Missions and International Organizations Act
The RCMP as peace officers have the general duty to preserve the peace and prevent
crime and offences as set out in s 18 of the Royal Canadian Mounted Police Act49
Additional duties found in s 17 of the Royal Canadian Mounted Police Regulations
198850 include the protection of ldquointernationally protected personsrdquo as defined in s 2 of
the Criminal Code Internationally protected persons include heads of state and their
43 RSO 1990 c T2144 Ibid ss 9(1) 1045 Ibid s 2(1)46R v Behrens [2004] OJ No 5135 (CJ) The Court held that the issue of the trespass notices fell under the Speakerrsquos parliamentary privilege and were not reviewable even on the basis of a Charter argument47R v Semple [2004] OJ No 2137 (CJ)48 In R v Semple the defendants were charged under the Ontario Trespass to Property Act for entering the grounds of Toronto City Hall after being banned from doing so In the end the Court held that the defendantsrsquo peaceful entry onto the grounds was an expression as per s 2(b) of the Charter Torontorsquos notice under the Act infringed on this freedom and in these circumstances it could not be justified under s 1 of the Charter 49 RSC 1985 c R-1050 SOR88-361
27
family members The RCMPrsquos duty to protect internationally protected persons is also
found in s 6(1) of the Security Offences Act51
In addition Canada is a signatory of the United Nations Convention on the Prevention
and Punishment of Crimes against Internationally Protected Persons including
Diplomatic Agents52 This Convention provides that the Government of Canada must
protect visiting heads of state or government foreign ministers representatives or
officials of a state or any official or other agent of an international organization of an
intergovernmental character and the family members that accompany him or her The
RCMP has the responsibility to carry out these security measures
Pursuant to s 101(1) of the FMIOA ldquoThe Royal Canadian Mounted Police has the
primary responsibility to ensure the security for the proper functioning of any
intergovernmental conference in which two or more states participate that is attended by
persons granted privileges and immunities under this Act and to which an order made or
continued under this Act appliesrdquo
The powers to carry out this mandate are found in s 101(2) of the FMIOA ldquothe Royal
Canadian Mounted Police may take appropriate measures including controlling limiting
or prohibiting access to any area to the extent and in a manner that is reasonable in the
circumstancesrdquo It is noteworthy that the FMIOA has legislated the same powers
provided to the police under common law and statute
In order to trigger the RCMP powers described in s 101 the Governor in Council on the
51 RSC 1985 c S-752 UNGA Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons including Diplomatic Agents 20 February 1977 UN Doc I-15410
28
recommendation of the Minister of Foreign Affairs and pursuant to s 5 of the FMIOA
made the G8 Summit Privileges and Immunities Order 201053 on December 10 2009
This order was repealed and a subsequent order54 was made on January 13 2010 A
similar order55 for the G20 Summit was made on March 11 201056
Therefore during the G20 the RCMP had the specific statutory power to limit or
prohibit access to any area and to any extent as long as the measures were appropriate
and done in a manner that was reasonable in the circumstances ldquoThe RCMP may secure
the perimeter of the security zone on land with fencing and restrict access to this zone
through the use of checkpoints and other measuresrdquo57
Though not invoked during the G20 s 101(4) of the FMIOA provides that arrangements
can be entered into with a province concerning the responsibilities of members of the
RCMP and members of the provincial and municipal police forces with respect to
ensuring the security for the proper functioning of an intergovernmental conference No
information was provided to me as to why such an arrangement was not entered into for
the G20
These intergovernmental security provisions of the FMIOA were enacted just prior to the
G8 being held in Kananaskis Alberta in 2002 In light of violent protests at international
events and the 911 terrorist attacks in the United States the Federal Government
53 SOR2009-33654 SOR2010-1355 SOR2010-6256 Supra note 17 ldquoUpon such an Order being made the RCMP in co-operation and collaboration with other police forces becomes impressed with the primary responsibility of ensuring not only the protection of the IPPs but also ensuring lsquosecurity for the proper functioningrsquo of the intergovernmental conference To that end the FMIOA provides that the lsquoappropriate measures including controlling limiting or prohibiting access to any area to the extent and in a manner that is reasonable in the circumstancesrsquo may be takenrdquo57 Ibid
29
considered it timely ldquoto clarify in statute the present common law authority for police to
provide security and protection for high profile international eventsrdquo58 At such events it
was intended that ldquothe RCMP is the lead to make sure that security is providedrdquo59
Given that it was clearly the intention of the Federal Government to have the RCMP as
the lead police force at these international events consideration should be given to
expand the use of the FMIOA to cover all large scale international events such as the
Olympics the Pan American Games and international trade fairs as these events are
routinely attended by heads of state and senior government officials Most recently
Vancouver held the 2010 Olympic and Paralympic Winter Games60 Though federal and
municipal legislation were passed to assist in securing the Games expansion and
application of the FMIOA would have been a better approach The RCMP as the national
police force ought to be in charge pursuant to their authority under the FMIOA
4 Emergency Legislation
Through my consultations with the parties listed in Appendix 2 I heard that while we are
not in a time of war as in 1939 when the PWPA was enacted we live in an age of
international and local terrorism threats Our democratic society must be vigilant in
58 Canada House of Commons Debates 37th Parl 1st Sess No 93 (5 October 2001) at 100059 Canada House of Commons Standing Committee on Public Safety and National Security 40th Parl 3rd
Sess Evidence (25 October 2010)60 In anticipation of this event the Governor General in Council on the recommendation of the Minister of Transport pursuant to the Aeronautics Act (RSC 1985 c A-2) and the Canadian Air Transport Security Authority Act (SC 2002 c 9 s 2) passed the Vancouver 2010 Aviation Security Regulations (SOR2009-298) The purpose of the regulations was to enhance aviation security during the Games The Regulation provided for extra security and extra authorized means to conduct screenings In addition the Vancouver City Council passed the very lengthy By-law No 9962 known as the ldquoVancouver 2010 Olympic and Paralympic Winter Games By-Lawrdquo Specific security measures to be employed at a city live site (described thoroughly in a Schedule to the By-Law) that were enabled by this By-Law included The installation and monitoring of airport style and other security measures including magnetometers and X-ray machines the installation and monitoring of closed circuit television cameras the searching of any person who wished to enter on to a city live site and any bag luggage or other container carried by such person and the prohibiting of access to or removal from a city live site any person who refused to submit to a search
30
maintaining a proper level of security while recognizing that democratic values and
security issues can conflict where public order is at issue It is important to highlight that
provincial legislation exists dealing with both terrorism threats and emergency situations
I have been informed that federal and provincial counter-terrorism plans exist that
address preventing and responding to acts of terrorism
The Police Services Act regulations mandate police forces to establish procedures
consistent with federal and provincial counter-terrorism plans61 and to have policies with
respect to counter-terrorism62 In addition the Emergency Management and Civil
Protection Act allows for orders to be made in situations specifically designated an
ldquoemergencyrdquo63 by the Lieutenant Governor in Council or the Premier that regulate or
prohibit travel and movement to from or within any specified area64 Therefore the
PWPA is not needed to deal with these emergency situations as specific more recent
emergency legislation is in place for that very purpose
C Gaps in Canadian Police Powers
The Ministry of Community Safety and Correctional Services provided me with an
interesting article published in 2010 entitled ldquoThe Gap in Canadian Police Powers
61 Adequacy and Effectiveness of Police Services O Reg 399 s 2862 Ibid s 2963 Section 1 of the Emergency Management and Civil Protection Act defines an ldquoemergencyrdquo as ldquoemergencyrdquo means a situation or an impending situation that constitutes a danger of major proportions that could result in serious harm to persons or substantial damage to property and that is caused by the forces of nature a disease or other health risk an accident or an act whether intentional or otherwise (ldquosituation drsquourgencerdquo)64 RSO 1990 c E9 s 702(4)
31
Canada needs lsquoPublic Order Policingrsquo Legislationrdquo and co-authored by Wesley Pue and
Robert Diab65
This article was prompted by the debate over the cost nature and extent of security to be
employed at the Vancouver 2010 Winter Olympics The authors criticized the fact that
policing authorities in Canada ldquolack specific statutory authorization to take measures
commonly thought necessary to their missionrdquo66 These measures included security
fences in public areas designated protest areas restricted access to public space police
surveillance and searches without cause
The authors recognize that such powers may be necessary but note that ldquono legislature
has ever expressly conferred such powers on policing authorities outside the context of
international intergovernmental conferences Nor does the common law accord such
powers to state officials on its ownrdquo67 I respectfully disagree with this latter statement
It is my view the police have powers pursuant to the common law and statute as I have
discussed in the preceding section
The authors referred to R v Knowlton68 which I have previously discussed While the
authors give Knowlton a very narrow interpretation stating that ldquoits binding principle is a
good deal narrower than the words taken out of context might suggestrdquo69 I however am
of the view that the decision supports the proposition that police have a broad range of
65 Wesley Pue and Robert Diab ldquoThe Gap In Canadian Police Powers Canada Needs lsquoPublic Order Policingrsquo Legislationrdquo (2010) 28 Windsor Rev Legal Soc Issues 87 Wesley Pue is a professor of legal history at the University of British Columbia and Robert Diab is a PhD candidate at the UBC Faculty of Law66 Ibid p 8867 Ibid68 Supra note 3469 Supra note 65 p 92
32
responsibilities with deep historical roots in the common law and codified in statute a
position shared by the Federal Government when it introduced amendments to the
FMIOA The actions of the police in Knowlton were necessarily incidental to their
common law police duties and powers
The authors conclude that this ldquoauthority of police to create zones of exclusion either as
an incident of the general and ancient duties of constableshelliphas never been established in
the courtsrdquo70 I am of the view however that the role of the police in establishing
security zones relating to a crime a serious accident or other emergency is a routine and
well-accepted use of police powers pursuant to their common law and statutory duties I
am not suggesting that this common law authority permits the police to establish security
zones ldquofor the proper functioning of any intergovernmental conference in which two or
more states participaterdquo71 larger than necessary to fulfill their purpose The FMIOA as
amended in 2002 provides the RCMP with ldquoprimary responsibility to ensure the security
for the proper functioning of the intergovernmental conferencerdquo72 It is interesting
however that when the Federal Government was enacting this specific authority the
legislative debates indicated that the government was merely clarifying ldquoin statute the
present common law authority for police to provide security and protection for high
profile international eventsrdquo73
Security perimeters are routinely erected by police in the context of the commission of a
crime motor vehicle and other accidents as well as the Santa Claus parade and other
70 Ibid p 9671 Supra note 8 s 101(1)72 Ibid73 Supra note 58
33
parades It would in my view be quite impractical and unnecessary to legislate an
extensive code of police powers given their common law and statutory responsibilities to
generally maintain public order It is not advisable in my opinion to be prescriptive in
any way regarding what actions the police can take since they must assess what the
situation warrants while at the same time considering individual rights and freedoms
The details of any police response to an emergency must be tailored to the exigencies
related to the situation
The police clearly have common law and statutory authority to conduct warrantless
searches in specific situations (ldquoin exigent circumstancesrdquo)74 However when
warrantless searches must be carried out on a regular routine basis the police are acting
more like full time security guards and there should be specific statutory authority
provided to give such powers
I certainly accept the general proposition the authors assert that the mobility rights of
citizens should not be unreasonably or unfairly dealt with However one only need be
aware of the massive amount of construction taking place on the streets of Toronto as this
Report is being written to appreciate that it is not always reasonable to expect that ldquothe
rights of businesses homeowners and ordinary citizens to go about their routine
activities without interruptionrdquo75 will go unhindered While generally desirable it cannot
be legally guaranteed At the same time the authors do concede that ldquoimportant as they
74 Supra note 42 s 4871175 Supra note 65 p 89
34
are the rights of assembly movement and protest are not unqualified They can ndash and
should ndash be balanced against other important public needsrdquo76
In my view public policing at times requires innovation as it often benefits from
creative problem solving If police abuse their common law powers related to ldquopublic
order policingrdquo they are accountable to a multiplicity of authorities and the rule of law
most particularly the Charter The legal rights outlined in the Charter such as ldquothe
principles of fundamental justicerdquo77 security ldquoagainst unreasonable search and seizurerdquo78
and ldquothe right not to be arbitrarily detained or imprisonedrdquo79 are described very
generally However they were chosen deliberately as it was recognized that in each case
there is an inherent tension between imposing security measures and fundamental rights
and freedoms Determining which is paramount will be based on the facts of each case
76 Ibid p 9177 Canadian Charter of Rights and Freedoms s 7 Part I of the Constitution Act 1982 being Schedule B to the Canada Act 1982 (UK) 1982 c 1178 Ibid s 879 Ibid s 9
35
SECTION 5 LEGAL ANALYSIS OF THE PUBLIC WORKS PROTECTION ACT
A Legal Analysis of the Legislation
Many stakeholders have questioned the constitutional validity of the PWPA and O Reg
23310 The Ontario Ombudsman seriously questioned whether O Reg 23310 could
pass ldquoconstitutional musterrdquo80 The CCLA suggested that the broad police powers
granted under the PWPA were inconsistent with the Charter81
To the same effect were comments made by Premier Dalton McGuinty who described
the PWPA as ldquoan archaic law that was used to undermine Torontoniansrsquo civil rights
during the G20rdquo82 He elaborated83
The issue is whether itrsquos appropriate given our present-day values and given an old law which I am confident doesnrsquot strike the balance that you and I would want today in terms of public safety and individual freedom of expressionhellipWhen you start talking about civil rights individual freedoms yoursquore talking about those things that in fact define us as a free and democratic societyhellipItrsquos something that is real and meaningful and important to all of us
The Terms of Reference for this Review do not require that I conduct a constitutional
analysis of the PWPA I have however been asked to consider areas for reform and if
appropriate make specific recommendations for amendment or repeal This does require
that I therefore consider whether the legislation may be vulnerable to constitutional
challenge
Section 2(b) of the Charter guarantees everyone the fundamental freedom of expression
The definition of ldquoexpressionrdquo has been interpreted broadly ldquoActivity is expressive if it
80 Supra note 32 at para 23381 Supra note 26 p 982 Robert Benzie and Rob Ferguson ldquoMcGuinty shifts focus to fixing G20 lawrdquo Toronto Star (10 December 2010) online thestarcom lthttpwwwthestarcomnewscanadaarticle905436--mcguinty-shifts-focus-to-fixing-g20-lawgt 83 Ibid
36
attempts to convey meaningrdquo84 While freedom of expression is not absolute there is
very little that is not considered expression However expression that advocates violence
is not protected under s 2(b)85
The Supreme Court of Canada in Committee for the Commonwealth of Canada v
Canada held that s 2(b) ldquodoes not encompass the right to use any and all government
property for purposes of disseminating onersquos views on public matters but I have no doubt
that it does include the right to use for that purpose streets and parks which are dedicated
to the use of the public subject no doubt to reasonable regulation to ensure their
continued use for the purposes to which they are dedicatedrdquo86 It seems clear that
protesting in public streets is a form of expression protected by s 2(b) Protesting at an
intergovernmental conference is clearly expressive in nature
In challenges alleging that a statute contravenes s 2(b) of the Charter a court would
examine whether the purpose or effect of a law contravenes section 2(b)87 There is no
reason to suggest that the purpose of the PWPA was to infringe the freedom of
expression The purpose of the PWPA is to protect important public infrastructures A
court would then have to consider whether the effect of the PWPA may have resulted in
an infringement of freedom of expression
O Reg 23310 defined significant portions of downtown Toronto as a ldquopublic workrdquo
Section 3(c) of the PWPA allows peace officers to refuse entry into public works which
therefore limits the areas in which protesters could express themselves By creating the
84 Irwin Toy Ltd v Queacutebec (Attorney General) [1989] 1 SCR 927 at 96885 Ibid at 97086 [1991] 1 SCR 139 at 165-16687 Peter Hogg Constitutional Law of Canada loose-leaf (consulted on 7 January 2011) 5th ed (Toronto Thomson Reuters Canada Limited 2007) at 43-6
37
relatively large security perimeter designated by the regulation individuals may allege
they were not permitted to communicate directly with those they were protesting against
Furthermore individuals could not communicate in public places such as public streets
where the right to freedom of expression has previously been found to exist88
Commissioner Ted Hughes completed an interim report following a public hearing into
the complaints regarding events that took place with respect to the Asia Pacific Economic
Cooperation (APEC) Conference in Vancouver British Columbia in November 1997
Commissioner Hughes recommended that generous opportunity should be afforded to
peaceful protesters to be seen in their protest activities by guests at the event89
Section 7 of the Charter provides that ldquoEveryone has the right to life liberty and security
of the person and the right not to be deprived thereof except in accordance with the
principles of fundamental justicerdquo The PWPA raises issues regarding the liberty and
security of the person in providing for warrantless searches and stopping for
identification Furthermore vague laws offend two fundamental values of our legal
system90 Firstly individuals are not provided with sufficient guidance as to what
behaviour a law prohibits Secondly those in charge of enforcing the law are not
provided with clear guidance as to how to enforce it A vague law can lead to inconsistent
and arbitrary enforcement91
88 Supra note 86 89 Canada Commission for Public Complaints Against the RCMP APEC ndash Commission Interim Report (31 July 2001) at s 3111 (Commissioner Ted Hughes QC) online Commission for Public Complaints Against the RCMP lthttpwwwcpc-cppgccaprrrepphrapecapec-31-engaspxgt90 Supra note 87 at 47-60 91 ldquoA vague provision does not provide an adequate basis for legal debate that is for reaching a conclusion as to its meaning by reasoned analysis applying legal criteria It does not sufficiently delineate any area of risk and thus can provide neither fair notice to the citizen nor a limitation of enforcement discretion Such
38
As described by Professor Hogg92
The requirement that any limit on rights be prescribed by law reflects two values that are basic to constitutionalism or the rule of law First in order to preclude arbitrary and discriminatory action by government officials all official action in derogation of rights must be authorized by law Secondly citizens must have reasonable opportunity to know what is prohibited so that they can act accordingly Both these values are satisfied by a law that fulfils two requirements (1) the law must be adequately accessible to the public and (2) the law must be formulated with sufficient precision to enable people to regulate their conduct by it and to provide guidance to those who apply the law
As I stated earlier the phrase ldquoany approach theretordquo contained in s 3(a) of the PWPA is
potentially vague No criteria are provided to assist in determining when one is on ldquoany
approach theretordquo A phrase such as ldquoany approach theretordquo is subject to many potential
interpretations It is arguable that this language does not provide reasonable guidance for
individuals to obey the law and for the law to be consistently enforced
Section 8 of the Charter provides that ldquoEveryone has the right to be secure against
unreasonable search or seizurerdquo A warrantless search or seizure is only reasonable if the
search was authorized by law the law itself is reasonable and the manner in which the
search carried out was reasonable93 The fact that no reasonable or probable suspicions
are needed to carry out a search pursuant to s 3(b) of the PWPA raises some issues The
only prerequisite to such a search is that the person or vehicle being subjected to a search
is entering or attempting to enter a public work
a provision is not intelligible to use the terminology of previous decisions of this Court and therefore it fails to give sufficient indications that could fuel a legal debaterdquo (R v Nova Scotia Pharmaceutical Society [1992] 2 SCR 606 at 639-640) 92 Supra note 87 at 38-1293 R v Nolet [2010] SCJ No 24 at para 21
39
Whether the PWPArsquos s 3(b) authority to undertake warrantless searches is ldquoreasonablerdquo
depends on the reasonableness of the impact on the subject of the search ldquoThe
individuals reasonable expectation of privacy must of course be balanced against the
public interest in effective law enforcementrdquo94 It is harder to justify a warrantless search
where the reasonable expectation of privacy is higher For example interference with
bodily integrity will raise the standard of reasonableness Conversely in situations where
people expect to have a lower level of privacy the standard to prove reasonableness is
lower
One rightfully has some expectation of privacy when in public but it does not rise to the
level of privacy that one expects in onersquos home The expectation of privacy further
decreases when one attempts to enter a ldquopublic workrdquo especially in the context of a
secured barrier to an intergovernmental conference
Section 9 of the Charter provides that ldquoEveryone has the right not to be arbitrarily
detained or imprisonedrdquo95 Under s 3(a) of the PWPA a person entering or attempting to
enter or approach a public work must provide his or her name and address and state the
purpose for which he or she desires to enter the public work In order for a guard or
peace officer to carry out this duty the guard or peace officer may ldquostoprdquo the person from
further approaching or entering the public work and the person is not permitted under the
statute to decide not to enter By so doing it is arguable the guard or peace officer has
assumed control over the movement of the individual by a demand or direction The
94 R v Rao [1984] OJ No 3180 at para 79 (CA)95 ldquoDetention under s 9hellipof the Charter refers to a suspension of the individualrsquos liberty interest by a significant physical or psychological restraint Psychological detention is established either where the individual has a legal obligation to comply with the restrictive request or demand or a reasonable person would conclude by reason of the state conduct that he or she had no choice but to complyrdquo (R v Grant [2009] SCJ No 32 at para 44)
40
PWPA provides for a significant legal consequence if the demand or direction is not
followed since ldquoEvery person who neglects or refuses to comply with a request or
direction made under this Act by a guard or peace officer and every person found upon a
public work or any approach thereto without lawful authority the proof whereof lies on
him or her is guilty of an offence and on conviction is liable to a fine of not more than
$500 or to imprisonment for a term of not more than two months or to bothrdquo96
Pursuant to s 3(b) of the PWPA a guard or peace officer may search any person entering
or attempting to enter a public work These searches would necessitate the detention of a
person If a guard or peace officer performs such a search he or she has taken control
over the movement of the person by a demand or direction The same serious legal
consequence results from failing to obey this demand or direction as that which results
from failing to obey the demand or direction pursuant to s 3(a) of the PWPA As a
result ldquodetentionsrdquo could occur pursuant to both s 3(a) and s 3(b) of the PWPA
The question that would need to be addressed in any challenge to the PWPA is whether
the detentions permitted by the PWPA are arbitrary in nature The use of the term ldquoany
approach theretordquo is vague and imprecise A person could be deemed to be on ldquoany
approach theretordquo a great distance from the entrance of a public work and their detention
might very well be arbitrary In addition the fact that the guards and peace officers
determine the boundaries of the ldquoapproachesrdquo which cannot be contested seems
arbitrary as well as who they chose to search
96 It should be noted that not all communications with state authorities and police officers will amount to a detention The question is whether a person may reasonably believe that he or she is free to refuse to comply
41
Section 11(d) of the Charter provides that ldquoAny person charged with an offence has the
right to be presumed innocent until proven guilty according to law in a fair and public
hearing by an independent and impartial tribunalrdquo This requires that the Crown have the
burden of proving the guilt of an individual charged with an offence97 Provisions that
place the burden on the accused to disprove on the balance of probabilities an essential
element of an offence raises s 11(d) concerns because convictions would be possible
even if reasonable doubt existed98 The presumption of innocence is not only infringed
upon by a requirement that an accused disprove an essential element of an offence but
also any requirement on an accused to prove a fact on the balance of probabilities to
avoid conviction
Section 5(1) of the PWPA states that ldquoEvery person who neglects or refuses to comply
with a request or direction made under this Act by a guard or peace officer and every
person found upon a public work or any approach thereto without lawful authority the
proof whereof lies on him or her is guilty of an offence and on conviction is liable to a
fine of not more than $500 or to imprisonment for a term of not more than two months or
to bothrdquo For the offence of being found upon a public work or on any approach to a
public work without lawful authority the burden of proof has been ldquoshiftedrdquo from the
Crown to the accused to prove lawful authority
As the foregoing analysis reveals there are certainly many concerns that arise when one
places the PWPA under the lens of the Charter However the rights and freedoms
provided by the Charter are not absolute They are ldquosubject only to such reasonable
97 R v Oakes [1986] 1 SCR 10398 Ibid at 132
42
limits prescribed by law as can be demonstrably justified in a free and democratic
societyrdquo99
In assessing whether a law which infringes the Charter is saved by s 1 a court examines
both the object of the law and the measures taken to achieve that objective A lawrsquos
objective achieves the status of being sufficiently important to justify overriding a
Charter right only when it is consistent with the values of a free and democratic society
The objective must relate to pressing and substantial concerns and not concerns that are
trivial and must be focussed on ldquothe realization of collective goals of fundamental
importancerdquo100 The measures adopted must be ldquorationally connectedrdquo to the objective of
the law101 The measures ldquoshould impair lsquoas little as possiblersquo the right or freedom in
questionrdquo102 Furthermore there must be ldquoa proportionality between the effects of the
measures which are responsible for limiting the Charter right or freedom and the
objective which has been identified as of lsquosufficient importancersquordquo103
An issue that may affect whether the potential limitation on rights and freedoms of the
PWPA and O Reg 23310 were ldquoprescribed by lawrdquo is whether the regulation was
adequately accessible to the public The Ontario Ombudsman the CCLA and the Ontario
Bar Association (ldquoOBArdquo) all noted a lack of notice regarding O Reg 23310 and its
effects prior to and during the G20 While the text of the regulation was available prior
99 Charter s 1 The Superior Court of Quebec decision of Tremblay v Queacutebec (Attorney General) [2001] JQ No 1504 (CS) involved an interim injunction brought by an applicant who was denied entry into the secured perimeter during the 2001 Summit of the Americas in Queacutebec City The applicant sought an injunction to either eliminate the security barrier or to be given a pass to let him within the secured perimeter Even though the Court held that the erection of the security zone violated the applicantrsquos right to freedom of expression and peaceful assembly The court held that the infringement was ldquodemonstrably justified in a free and democratic societyrdquo100 Supra note 97 at 136101 Ibid at 139102 Ibid103 Ibid
43
to the G20 it was only available on a website not frequently accessed by the public
Since O Reg 23310 was not published in The Ontario Gazette until after it was
revoked it may be that the regulation was not adequately accessible to the public
Reverse onus offences have been found to be ldquorationally connectedrdquo when there is plainly
a rational connection between the proven fact and the fact to be presumed Reverse
onuses have also been upheld when the burden placed on the Crown would be virtually
impossible to meet (such as proving sanity)104 Even if the accused only has the burden
of disproving the fact that heshe did not have lawful authority to be in a public work or
on an approach thereto there may not be a rational connection between the proven fact
and the fact to be presumed
The history of threats and violence at previous intergovernmental conferences
demonstrated that the protection of G20 participants was a pressing and substantial
concern However given the broadness of the PWPA every exercise of it raises the
potential for Charter scrutiny
Recommendation
Given the public policy considerations I have raised regarding the PWPA and Charter
concerns that could arise I recommend that the PWPA be repealed after the Province has
considered potential policy and security gaps as a result of its repeal
B Other uses of the Public Works Protection Act
It appears from my consultations with stakeholder groups that if the PWPA is repealed
104 R v Chaulk [1990] 3 SCR 1303 at 1340
44
there are two areas which may require legislation to provide specific peace officer
powers These two areas are court security and the protection of nuclear power facilities
and other power generating infrastructures
1 Court Security
During my decade as Ontariorsquos Attorney General (1975 to 1985) there were three
murders in provincial courthouses as well as many threats to members of courthouse staff
and others As violent acts in courthouses can be anticipated courtroom security is often
required
Individuals are compelled to go to court for a variety of reasons such as appearing as an
accused as a witness or for jury duty To provide protection to those who work there or
are compelled to attend an adequate level of court security may require a search without
warrant of each and every individual who seeks to enter a courthouse It is not reasonable
to require prior judicial authorization for each search that takes place
The courts have considered the constitutionality of these provisions of the PWPA in
conjunction with section 137 of the Ontario Police Services Act in the context of court
security
Section 137 of the Ontario Police Services Act imposes a responsibility on municipal
police services boards to secure the premises where court proceedings are conducted and
includes
1 Ensuring the security of judges and of persons taking part in or attending proceedings
45
2 During the hours when judges and members of the public are normally present ensuring the security of the premises
3 Ensuring the secure custody of persons in custody who are on or about the premises including persons taken into custody at proceedings
4 Determining appropriate levels of security for the purposes of paragraphs 1 2 and 3
In R v Campanella105 Ms Campanella was attending the John Sopinka Courthouse in
Hamilton At the courthouse there were signs posted stating that those who entered
would be searched for weapons When Ms Campanellarsquos bag was searched marijuana
was found and she was charged with the possession of marijuana She argued that her s
8 Charter protection against unreasonable search and seizure had been violated and the
marijuana discovered during the search should therefore be excluded as evidence The
trial judge and the summary convictions appeal court rejected the section 8 Charter
argument and the appellant appealed to the Ontario Court of Appeal
The Ontario Court of Appeal agreed that ldquogiven the importance of the government
objective and the context in which these searches take place it is reasonable to authorize
warrantless searches of those entering courthouse facilitiesrdquo106 The Court stated ldquothe
only effective way to diminish the risk in a large courthouse is to subject everyone
without prior security clearance to some kind of inspection I can see no other feasible
means of achieving the aimrdquo107
The Court also pointed out the concern relating to the erosion of the benefits and
105 [2002] OJ No 5104 (SCJ) affrsquod [2005] OJ No 1345 (CA) [ldquoCampanellardquo]106 R v Campanella [2005] OJ No 1345 at para 17 (CA)107 Ibid at para 19
46
protections conferred by s 8 of the Charter108
I am sensitive to the concern that we should not erode the benefits and protections of s 8 by gradually sanctioning ever-greater intrusions into privacy because of unfounded fears We should not lightly accept that searches in public places are justified solely because people have become used to them and expect them However the record in this case establishes the justification for the kinds of searches carried out in this case
Ultimately the appeal was dismissed and s 137 of the Police Services Act and s 3(b) of
the PWPA) were held to comply with s 8 of the Charter109
In its consultations with me the OBA similarly stated that the existing nature of court
security is necessary and is generally ldquowell toleratedrdquo At the same time however it
submits that the security regime should not be ldquoshoehornedrdquo into the PWPA regime and
that it would be preferable to provide a legislative framework tailored for the specific
security requirements While the PWPA has been relied upon as support for the exercise
of powers by the police in providing court security the OBA submits that the PWPArsquos
ldquosingle security schemerdquo which declares something a ldquopublic workrdquo is an ldquoawkward
blunt instrument in a world where more specialized tools are necessaryrdquo When
warrantless searches are being done on a routine basis it is advisable to have specific
legislation providing peace officers with such power
Recommendation
Court security legislation is currently in place in many jurisdictions across Canada and
contain provisions that permit warrantless searches of persons wanting to access a
108 Ibid at para 25109 The Court in R v SS [2005] OJ No 5002 (SCJ) agreed with the findings and rationale of the Court of Appeal in Campanella
47
courthouse The constitutional validity of such legislation in Manitoba was upheld by that
provincersquos highest court110
Given the ongoing need for warrantless searches at courthouses the Province of Ontario
should consider specific court security legislation in Ontario to support the security
measures in our courthouses if the PWPA is to be repealed taking into consideration the
responsibilities of the municipal police services boards provided in s 137 of the Police
Services Act This legislation should only be passed after proper notice consultation and
legislative debate
2 Power Generating Infrastructures
It is clear from the submissions that I received from representatives of OPG and the
Canadian Nuclear Safety Commission (ldquoCNSCrdquo) that the PWPA currently plays a role in
providing security officers with the powers to secure power generating infrastructures
including the ability to carry firearms and the ability to stop and require identification
from those in proximity to those nuclear plants
Security is of the utmost importance in protecting a nuclear power plant Members of the
public do not need to access a nuclear or similar power facility unless employed at the
facility or carrying out work for the facility111
The security of areas within nuclear power plants is governed by the Nuclear Security
110 R v Lindsay [2004] MJ No 380 (CA) 111 Though the discussion focuses on nuclear power plants I have been informed that other power generating infrastructures use the PWPA to designate their security officers as guards As a result if the PWPA is repealed it will be necessary to broaden the consultations in relation to these other power generating infrastructures
48
Regulations112 Every nuclear power plant must be located within a ldquoprotected areardquo113
This protected area is the area within a fenced perimeter which is alarmed and
continually patrolled This area must be equipped with devices that employ two
independent systems to detect intrusion into the area114 The Nuclear Security
Regulations also provide detailed specifications for the barrier which must enclose the
protected area115 In addition licensees must ldquoidentify all vital areas and implement
physical protection measures ndash including access control and measures designed to delay
unauthorized accessrdquo116
The Nuclear Security Regulations also provide detailed provisions regarding entry into
protected areas No person can ldquoenter a protected area without physical proof of the
recorded authorization of the licenseerdquo117 Further to this on entry into a protected area
ldquothat personrsquos identity shall be verified by two separate personnel identity verification
systems one of which is an access card reader and the other of which is a biometric
personnel identity verification devicerdquo118 Licensees must also ldquoensure that vehicle
portals are used for the entry and exit of land vehicles into and from a protected areardquo119
Physical protection measures are also required to reduce the chance of a forced land
vehicle entry into a protected area120
The power to conduct searches upon entry to a protected area is also provided by the
112 SOR2000-209 113 Ibid s 8114 Ibid s 11(a)(i)115 Ibid s 9116 Ibid s 141117 Ibid s 17(1)118 Ibid s 171119 Ibid s 91(1)120 Ibid s 91(4)
49
Nuclear Security Regulations Signs must be posted that are visible to people about to
enter the protected area stating that they must allow a nuclear security officer (ldquoNSOrdquo) to
ldquosearch them and everything in their possession including any land vehicle for weapons
and explosive substancesrdquo121 In addition when leaving the protected area people must
allow NSOs to ldquosearch them and everything in their possession including any land
vehicle for Category I II or III nuclear materialrdquo122 People are not permitted to enter or
leave a protected area unless these searches are carried out123 The Nuclear Security
Regulations provide for the method of search including ldquoa hand-held scanner a walk-
through scanner or any similar devicerdquo124 In addition if an NSO determines it
necessary a frisk search can be carried out by a person of the same sex125
I have been informed that the area outside of but adjacent to the ldquoprotected areardquo is
referred to as the ldquocontrolled areardquo This area includes roadways and waterways within
the nuclear facilityrsquos property boundaries adjacent to or in close proximity to the nuclear
power plantrsquos protected area and may be generally accessible to the public
As a result of the September 11 2001 terrorist attacks the Nuclear Security Regulations
were amended to require that high security nuclear facilities maintain an on-site armed
Nuclear Response Force (ldquoNRFrdquo)126 The NRF is composed of specialized NSOs
Section 32 of the Nuclear Security Regulations requires the NRF to be capable of making
an effective intervention taking into account the threat
121 Ibid s 27(1)(a)122 Ibid s 27(1)(b)123 Ibid s 27(2)124 Ibid s 27(5)(a)125 Ibid s 27(5)(b)126 Ibid s 32
50
Members of the NRF are mandated by the Nuclear Security Regulations to be ldquotrained in
the use of firearms authorized to carry firearms in Canada and qualified to use themrdquo127
However to satisfy this requirement the NRF resorts to the PWPA since the federal
regulations do not authorize the NRF to carry firearms without a licence However
under s 2(1) of the PWPA NSOs are designated as ldquoguardsrdquo with the powers of a peace
officer most significantly to carry and use firearms without having to be licensed128
Such a designation also enables the OPG to acquire and dispose of firearms
In the consultations I had with the OPG and the CNSC they advised me that NSOs
receive training equivalent to Canadian police standards and that NRF officers receive
training equivalent to federal and provincial police tactical team requirements
Another aspect of the PWPA used to secure nuclear power plants relates to powers
exercised by NSOs in ldquocontrolled areasrdquo The federal regulations do not provide the
NSOs with any power to demand identification within this area However pursuant to
the PWPA as appointed ldquoguardsrdquo the NSOs have the power to demand identity
verification in the controlled area They also have the authority to arrest anyone who
obstructs NSOs in the performance of their duties under the PWPA
In addition to using the PWPA to secure the controlled areas I have been advised by the
OPG that NSOs use powers pursuant to the PWPA to secure areas within 100 metres of a
nuclear facilityrsquos property line immediately adjacent to the controlled area These powers
are exercised under the broad language of the PWPA regarding ldquoapproaches to public
127 Ibid s 1 (on-site nuclear response force definition)128 Section 11707 of the Criminal Code exempts peace officers from licensing requirements for possessing firearms and other prohibited and restricted weapons
51
worksrdquo This is an illustration of the problem with the vagueness of this language in the
legislation As these powers are exercised on public land they could be challenged as a
potential infringement on individual rights and freedoms However I have been advised
that there have been no such incidents to date The need to ensure the security of these
facilities must be taken into the balance
NSOs must be able to monitor and control access to the controlled areas and areas close
to a nuclear power plantrsquos property line This provides for a more secure perimeter
around these facilities They need authority to challenge individuals acting in a suspicious
manner or conducting surveillance of nuclear facilities The OPG has informed me that
areas outside a nuclear facilityrsquos property line immediately adjacent to the controlled
area are still close enough to take advantage of the short distance to conduct intelligence
using high-powered surveillance equipment These nuclear power plants are not located
on isolated islands and are therefore vulnerable Both the Pickering Nuclear Generating
Station and the Darlington Nuclear Generating Station operate within major urban areas
being 30 km and 60 km east of downtown Toronto respectively I am advised that
previous events such as ldquoThe Toronto 18rdquo129 have shown that those intent on targeting
vital infrastructure such as power generating facilities often use reconnaissance and
intelligence gathering as precursor tactics
Recommendation
If the PWPA is to be repealed it is imperative that those who secure our nuclear and
power generating facilities be given the requisite specific legislative powers to do so
129 See for example ldquoLast 2 Toronto 18 accused found guiltyrdquo CBC News (23 June 2010) online cbcca lthttpwwwcbccanewscanadatorontostory20100623toronto-18-verdicthtmlgt
52
The source for these powers should be set out in the federal Nuclear Security
Regulations However if this is not a desired option the Government of Ontario must
consider specific legislation setting out the specific powers required to properly secure
these facilities and the specific location in which these powers can be exercised Such
legislation should not be passed without proper notice consultation and legislative
debate
53
SECTION 6 CONCLUSION
The PWPA was enacted in 1939 to support the war effort At the time the protection of
Ontariorsquos hydroelectric facilities from sabotage was of particular concern Since then the
PWPA has been used to provide the legal foundation for the powers exercised by the
police in providing court security and even more recently by the OPG in securing
nuclear power facilities In June 2010 the PWPA was used to provide powers to secure
intergovernmental conferences The vagueness of the PWPA permits it to be used in
situations when it is arguably not necessary and potentially abusive In my view the
PWPA has been used for purposes beyond its original intent
The time for the PWPA seems to have passed If the Government of Ontario enacts as I
have suggested specific legislation to provide for courthouse security and power
generating infrastructure security it would appear that there is no longer a need for the
PWPA I am also mindful of the existence of counter-terrorism and emergencies
legislation to deal with these situations as they arise
ldquoIn determining the boundaries of police powers caution is required to ensure the proper
balance between preventing excessive intrusions on an individualrsquos liberty and privacy
and enabling the police to do what is reasonably necessary to perform their duties in
protecting the publicrdquo130 The overly broad and vague language of the PWPA does not
strike this required balance with individual rights and freedoms
The late Justice Jackson of the United States Supreme Court stated that every
emergency power once conferred ldquolies about like a loaded weapon ready for the hand of
130 R v Clayton [2007] 2 SCR 725 at 742
54
any authority that can bring forward a plausible claim of an urgent needrdquo131 The need to
protect the public must be balanced with the requirement to preserve fundamental rights
and freedoms
Yet at the same time ldquoCanadians are entitled to demand the best public order policing
possible from their governmentrdquo132 There is no question that we live in a different world
post 911 We live in difficult times with constant threats both domestically and from
abroad The police clearly need to be given adequate powers to carry out their duties
The police use their expertise on a daily basis to assess the powers they require In
instances when they take action that exceeds their powers their actions are examined by
various mandated bodies This process I believe results in the proper balance between
police powers and individual rights and freedoms Therefore any legislation that purports
to grant special police powers must be specific and direct and developed in consultation
with stakeholders and tested through thorough debate in our transparent democratic
system
131 Korematsu v United States 323 US 214 (1944)132 Supra note 26 p 8
55
SECTION 4 POWERS OF THE POLICE
Pursuant to the Terms of Reference I have been asked to consider for future purposes
whether the powers given to peace officers and guards under the PWPA are necessary to
protect public works secure intergovernmental conferences or for any other purposes
To answer that question it is necessary to assess whether the current common law and
statutory regime provide the police with sufficient powers to perform these vital services
A Common Law Powers and Powers Pursuant to Police Services Acts
The police have extensive common law powers that can be used in protecting and
securing intergovernmental conferences and in protecting public works It is necessary to
examine those powers in order to assess whether and what if any additional powers are
needed such as those provided by the PWPA
Of particular assistance in this regard is R v Knowlton34 where the Supreme Court of
Canada considered whether the powers possessed by peace officers at common law and
statute in securing an area for the protection of a foreign dignitary were lawful The
Supreme Court of Canada held that in order for the exercise of peace officer powers to be
lawful the powers must satisfy the two step test set out in R v Waterfield35 First the
power must be in furtherance of a lawful duty Traditional common law peace officer
duties include the preservation of the peace and the prevention of crime These common
law police duties amongst others are now statutorily enshrined in s 42(1) of Ontariorsquos
Police Services Act (and other provincial police services acts)36 The second part of the
test requires an evaluation of whether the conduct of the peace officer was ldquojustifiedrdquo To
34 [1974] SCR 443 [ldquoKnowltonrdquo]35 See for example R v Dedman [1985] 2 SCR 236 RSO 1990 c P15
23
do so one applies the standard of what is reasonably necessary in light of the totality of
the circumstances In evaluating whether the conduct of the peace officer was justified it
is important to consider ldquothe duty being performed the extent to which some interference
with individual liberty is necessary in the performance of that duty the importance of the
performance of the duty to the public good the nature of the liberty being interfered with
and the nature and extent of the interferencerdquo37
In Knowlton police in Edmonton cordoned off an area as part of the security
arrangements for the visit of Premier Kosygin of the USSR Premier Kosygin had been
assaulted in Ottawa a few days prior to his visit to Edmonton Knowlton entered the
secured area questioning the power of the peace officer to prevent his entry He was
arrested without a warrant and charged with obstructing a peace officer in the execution
of his duties Knowlton argued that the peace officer did not have the power to prevent
his entry and was not acting in the execution of his duty
The Supreme Court of Canada emphasized the heightened importance of security when
there are visiting foreign dignitaries38
It is notorious and of common knowledge that the official visit of the head of state or high rank dignitary of a foreign country friendly as either may be is an event that frequently engenders a real or apprehended threat to the preservation of peace and that calls therefore for the adoption of proper and reasonable security measures in and by the host countryhellipThe restriction of the right of free access of the public to public streetshellipwas one of the steps--not an unusual one--which police authorities considered and adopted as necessary for the attainment of the purpose aforesaid In my opinion such conduct of the police was clearly falling within the general scope of the duties imposed upon them
37 R v Mann [2004] 3 SCR 59 at 7938 Supra note 34 at 447-448
24
In addressing the first part of the Waterfield test the Court referenced provisions of the
Alberta Police Act and the Criminal Code and concluded that the conduct of the peace
officers fell within the general scope of the duties imposed upon them for example
preservation of the peace and prevention of crime39
According to the principles which for the preservation of peace and prevention of crime underlie the provisions of s 30 amongst others of the Criminal Code these official authorities were not only entitled but in duty bound as peace officers to prevent a renewal of a like criminal assault on the person of Premier Kosygin during his official visit in Canada In this respect they had a specific and binding obligation to take proper and reasonable steps The restriction of the right of free access of the public to public streets at the strategic point mentioned above was one of the steps--not an unusual one--which police authorities considered and adopted as necessary for the attainment of the purpose aforesaid In my opinion such conduct of the police was clearly falling within the general scope of the duties imposed upon them
In analyzing the second step of the Waterfield test the Court concluded that there was no
evidence indicating the police officers resorted to an unjustifiable use of the powers
associated with the duties imposed on them
The Court in Knowlton recognized broad police powers to cordon off areas as part of the
security arrangements involving internationally protected persons In addition the Court
found that the warrantless arrest in that case was not an unjustifiable or unreasonable use
of powers associated with the police duties to preserve the peace order public safety and
to enforce the law and prevent crime Finally the Court found that peace officers were
duty bound ldquoto prevent a renewal of a like criminal assault on the person of Premier
Kosygin during his official visit in Canadardquo40 Furthermore it stated the closing of public
39 Ibid 40 Ibid at 447
25
streets ldquowas one of the steps -- not an unusual one -- which police authorities considered
and adopted as necessaryrdquo41
The Knowlton decision clearly acknowledged that the police had the duty and authority to
establish and enforce a secured area to protect a foreign dignitary In order to carry out
these duties the police may do what is reasonably necessary in light of the totality of the
circumstances
Though Knowlton was decided prior to the enactment of the Canadian Charter of Rights
and Freedoms (the ldquoCharterrdquo) this does not in my view affect the clear statement by the
Supreme Court of Canada regarding the duty of the police under the common law and the
Alberta Police Act to provide this security While the facts of Knowlton were quite
compelling in relation to the obvious need to provide adequate security for Premier
Kosygin the decision is equally important authority regarding the general responsibilities
of the police at common law and statute in relation to the preservation of the peace
B Other Statutory Powers
1 Criminal Code
Some specific powers are provided to peace officers pursuant to the Criminal Code42
Section 31 gives peace officers the power to arrest an individual for breach of the peace
Peace officers can arrest those committing the breach of the peace or those who on
reasonable grounds heshe believe are about to join in or renew the breach of the peace
Peace officers also have powers at their disposal under ss 63-69 of the Criminal Code to
deal with the offences of unlawful assembly and riots
41 Ibid at 447-448 42 RSC 1985 c C-46
26
2 Trespass to Property Act
The Ontario Trespass to Property Act43 is a potential source of police power to arrest
without warrant those who are unlawfully on certain premises or who were recently
unlawfully on the premises and refuse to give their name and address44 This statute
deals with illegal entry into both private and public property by creating the offence of
trespass for those who without the express permission of the occupier enter on to
premises or engage in an activity on the premises when it is prohibited by the statute45
Though this statute is primarily used by private property owners to keep unwanted people
off of their property it has also been invoked by the Speaker of the House46 and by the
City of Toronto47 It must be noted however that using the Trespass to Property Act in
relation to removing individuals from ldquopublicrdquo places may raise Charter issues48
3 Foreign Missions and International Organizations Act
The RCMP as peace officers have the general duty to preserve the peace and prevent
crime and offences as set out in s 18 of the Royal Canadian Mounted Police Act49
Additional duties found in s 17 of the Royal Canadian Mounted Police Regulations
198850 include the protection of ldquointernationally protected personsrdquo as defined in s 2 of
the Criminal Code Internationally protected persons include heads of state and their
43 RSO 1990 c T2144 Ibid ss 9(1) 1045 Ibid s 2(1)46R v Behrens [2004] OJ No 5135 (CJ) The Court held that the issue of the trespass notices fell under the Speakerrsquos parliamentary privilege and were not reviewable even on the basis of a Charter argument47R v Semple [2004] OJ No 2137 (CJ)48 In R v Semple the defendants were charged under the Ontario Trespass to Property Act for entering the grounds of Toronto City Hall after being banned from doing so In the end the Court held that the defendantsrsquo peaceful entry onto the grounds was an expression as per s 2(b) of the Charter Torontorsquos notice under the Act infringed on this freedom and in these circumstances it could not be justified under s 1 of the Charter 49 RSC 1985 c R-1050 SOR88-361
27
family members The RCMPrsquos duty to protect internationally protected persons is also
found in s 6(1) of the Security Offences Act51
In addition Canada is a signatory of the United Nations Convention on the Prevention
and Punishment of Crimes against Internationally Protected Persons including
Diplomatic Agents52 This Convention provides that the Government of Canada must
protect visiting heads of state or government foreign ministers representatives or
officials of a state or any official or other agent of an international organization of an
intergovernmental character and the family members that accompany him or her The
RCMP has the responsibility to carry out these security measures
Pursuant to s 101(1) of the FMIOA ldquoThe Royal Canadian Mounted Police has the
primary responsibility to ensure the security for the proper functioning of any
intergovernmental conference in which two or more states participate that is attended by
persons granted privileges and immunities under this Act and to which an order made or
continued under this Act appliesrdquo
The powers to carry out this mandate are found in s 101(2) of the FMIOA ldquothe Royal
Canadian Mounted Police may take appropriate measures including controlling limiting
or prohibiting access to any area to the extent and in a manner that is reasonable in the
circumstancesrdquo It is noteworthy that the FMIOA has legislated the same powers
provided to the police under common law and statute
In order to trigger the RCMP powers described in s 101 the Governor in Council on the
51 RSC 1985 c S-752 UNGA Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons including Diplomatic Agents 20 February 1977 UN Doc I-15410
28
recommendation of the Minister of Foreign Affairs and pursuant to s 5 of the FMIOA
made the G8 Summit Privileges and Immunities Order 201053 on December 10 2009
This order was repealed and a subsequent order54 was made on January 13 2010 A
similar order55 for the G20 Summit was made on March 11 201056
Therefore during the G20 the RCMP had the specific statutory power to limit or
prohibit access to any area and to any extent as long as the measures were appropriate
and done in a manner that was reasonable in the circumstances ldquoThe RCMP may secure
the perimeter of the security zone on land with fencing and restrict access to this zone
through the use of checkpoints and other measuresrdquo57
Though not invoked during the G20 s 101(4) of the FMIOA provides that arrangements
can be entered into with a province concerning the responsibilities of members of the
RCMP and members of the provincial and municipal police forces with respect to
ensuring the security for the proper functioning of an intergovernmental conference No
information was provided to me as to why such an arrangement was not entered into for
the G20
These intergovernmental security provisions of the FMIOA were enacted just prior to the
G8 being held in Kananaskis Alberta in 2002 In light of violent protests at international
events and the 911 terrorist attacks in the United States the Federal Government
53 SOR2009-33654 SOR2010-1355 SOR2010-6256 Supra note 17 ldquoUpon such an Order being made the RCMP in co-operation and collaboration with other police forces becomes impressed with the primary responsibility of ensuring not only the protection of the IPPs but also ensuring lsquosecurity for the proper functioningrsquo of the intergovernmental conference To that end the FMIOA provides that the lsquoappropriate measures including controlling limiting or prohibiting access to any area to the extent and in a manner that is reasonable in the circumstancesrsquo may be takenrdquo57 Ibid
29
considered it timely ldquoto clarify in statute the present common law authority for police to
provide security and protection for high profile international eventsrdquo58 At such events it
was intended that ldquothe RCMP is the lead to make sure that security is providedrdquo59
Given that it was clearly the intention of the Federal Government to have the RCMP as
the lead police force at these international events consideration should be given to
expand the use of the FMIOA to cover all large scale international events such as the
Olympics the Pan American Games and international trade fairs as these events are
routinely attended by heads of state and senior government officials Most recently
Vancouver held the 2010 Olympic and Paralympic Winter Games60 Though federal and
municipal legislation were passed to assist in securing the Games expansion and
application of the FMIOA would have been a better approach The RCMP as the national
police force ought to be in charge pursuant to their authority under the FMIOA
4 Emergency Legislation
Through my consultations with the parties listed in Appendix 2 I heard that while we are
not in a time of war as in 1939 when the PWPA was enacted we live in an age of
international and local terrorism threats Our democratic society must be vigilant in
58 Canada House of Commons Debates 37th Parl 1st Sess No 93 (5 October 2001) at 100059 Canada House of Commons Standing Committee on Public Safety and National Security 40th Parl 3rd
Sess Evidence (25 October 2010)60 In anticipation of this event the Governor General in Council on the recommendation of the Minister of Transport pursuant to the Aeronautics Act (RSC 1985 c A-2) and the Canadian Air Transport Security Authority Act (SC 2002 c 9 s 2) passed the Vancouver 2010 Aviation Security Regulations (SOR2009-298) The purpose of the regulations was to enhance aviation security during the Games The Regulation provided for extra security and extra authorized means to conduct screenings In addition the Vancouver City Council passed the very lengthy By-law No 9962 known as the ldquoVancouver 2010 Olympic and Paralympic Winter Games By-Lawrdquo Specific security measures to be employed at a city live site (described thoroughly in a Schedule to the By-Law) that were enabled by this By-Law included The installation and monitoring of airport style and other security measures including magnetometers and X-ray machines the installation and monitoring of closed circuit television cameras the searching of any person who wished to enter on to a city live site and any bag luggage or other container carried by such person and the prohibiting of access to or removal from a city live site any person who refused to submit to a search
30
maintaining a proper level of security while recognizing that democratic values and
security issues can conflict where public order is at issue It is important to highlight that
provincial legislation exists dealing with both terrorism threats and emergency situations
I have been informed that federal and provincial counter-terrorism plans exist that
address preventing and responding to acts of terrorism
The Police Services Act regulations mandate police forces to establish procedures
consistent with federal and provincial counter-terrorism plans61 and to have policies with
respect to counter-terrorism62 In addition the Emergency Management and Civil
Protection Act allows for orders to be made in situations specifically designated an
ldquoemergencyrdquo63 by the Lieutenant Governor in Council or the Premier that regulate or
prohibit travel and movement to from or within any specified area64 Therefore the
PWPA is not needed to deal with these emergency situations as specific more recent
emergency legislation is in place for that very purpose
C Gaps in Canadian Police Powers
The Ministry of Community Safety and Correctional Services provided me with an
interesting article published in 2010 entitled ldquoThe Gap in Canadian Police Powers
61 Adequacy and Effectiveness of Police Services O Reg 399 s 2862 Ibid s 2963 Section 1 of the Emergency Management and Civil Protection Act defines an ldquoemergencyrdquo as ldquoemergencyrdquo means a situation or an impending situation that constitutes a danger of major proportions that could result in serious harm to persons or substantial damage to property and that is caused by the forces of nature a disease or other health risk an accident or an act whether intentional or otherwise (ldquosituation drsquourgencerdquo)64 RSO 1990 c E9 s 702(4)
31
Canada needs lsquoPublic Order Policingrsquo Legislationrdquo and co-authored by Wesley Pue and
Robert Diab65
This article was prompted by the debate over the cost nature and extent of security to be
employed at the Vancouver 2010 Winter Olympics The authors criticized the fact that
policing authorities in Canada ldquolack specific statutory authorization to take measures
commonly thought necessary to their missionrdquo66 These measures included security
fences in public areas designated protest areas restricted access to public space police
surveillance and searches without cause
The authors recognize that such powers may be necessary but note that ldquono legislature
has ever expressly conferred such powers on policing authorities outside the context of
international intergovernmental conferences Nor does the common law accord such
powers to state officials on its ownrdquo67 I respectfully disagree with this latter statement
It is my view the police have powers pursuant to the common law and statute as I have
discussed in the preceding section
The authors referred to R v Knowlton68 which I have previously discussed While the
authors give Knowlton a very narrow interpretation stating that ldquoits binding principle is a
good deal narrower than the words taken out of context might suggestrdquo69 I however am
of the view that the decision supports the proposition that police have a broad range of
65 Wesley Pue and Robert Diab ldquoThe Gap In Canadian Police Powers Canada Needs lsquoPublic Order Policingrsquo Legislationrdquo (2010) 28 Windsor Rev Legal Soc Issues 87 Wesley Pue is a professor of legal history at the University of British Columbia and Robert Diab is a PhD candidate at the UBC Faculty of Law66 Ibid p 8867 Ibid68 Supra note 3469 Supra note 65 p 92
32
responsibilities with deep historical roots in the common law and codified in statute a
position shared by the Federal Government when it introduced amendments to the
FMIOA The actions of the police in Knowlton were necessarily incidental to their
common law police duties and powers
The authors conclude that this ldquoauthority of police to create zones of exclusion either as
an incident of the general and ancient duties of constableshelliphas never been established in
the courtsrdquo70 I am of the view however that the role of the police in establishing
security zones relating to a crime a serious accident or other emergency is a routine and
well-accepted use of police powers pursuant to their common law and statutory duties I
am not suggesting that this common law authority permits the police to establish security
zones ldquofor the proper functioning of any intergovernmental conference in which two or
more states participaterdquo71 larger than necessary to fulfill their purpose The FMIOA as
amended in 2002 provides the RCMP with ldquoprimary responsibility to ensure the security
for the proper functioning of the intergovernmental conferencerdquo72 It is interesting
however that when the Federal Government was enacting this specific authority the
legislative debates indicated that the government was merely clarifying ldquoin statute the
present common law authority for police to provide security and protection for high
profile international eventsrdquo73
Security perimeters are routinely erected by police in the context of the commission of a
crime motor vehicle and other accidents as well as the Santa Claus parade and other
70 Ibid p 9671 Supra note 8 s 101(1)72 Ibid73 Supra note 58
33
parades It would in my view be quite impractical and unnecessary to legislate an
extensive code of police powers given their common law and statutory responsibilities to
generally maintain public order It is not advisable in my opinion to be prescriptive in
any way regarding what actions the police can take since they must assess what the
situation warrants while at the same time considering individual rights and freedoms
The details of any police response to an emergency must be tailored to the exigencies
related to the situation
The police clearly have common law and statutory authority to conduct warrantless
searches in specific situations (ldquoin exigent circumstancesrdquo)74 However when
warrantless searches must be carried out on a regular routine basis the police are acting
more like full time security guards and there should be specific statutory authority
provided to give such powers
I certainly accept the general proposition the authors assert that the mobility rights of
citizens should not be unreasonably or unfairly dealt with However one only need be
aware of the massive amount of construction taking place on the streets of Toronto as this
Report is being written to appreciate that it is not always reasonable to expect that ldquothe
rights of businesses homeowners and ordinary citizens to go about their routine
activities without interruptionrdquo75 will go unhindered While generally desirable it cannot
be legally guaranteed At the same time the authors do concede that ldquoimportant as they
74 Supra note 42 s 4871175 Supra note 65 p 89
34
are the rights of assembly movement and protest are not unqualified They can ndash and
should ndash be balanced against other important public needsrdquo76
In my view public policing at times requires innovation as it often benefits from
creative problem solving If police abuse their common law powers related to ldquopublic
order policingrdquo they are accountable to a multiplicity of authorities and the rule of law
most particularly the Charter The legal rights outlined in the Charter such as ldquothe
principles of fundamental justicerdquo77 security ldquoagainst unreasonable search and seizurerdquo78
and ldquothe right not to be arbitrarily detained or imprisonedrdquo79 are described very
generally However they were chosen deliberately as it was recognized that in each case
there is an inherent tension between imposing security measures and fundamental rights
and freedoms Determining which is paramount will be based on the facts of each case
76 Ibid p 9177 Canadian Charter of Rights and Freedoms s 7 Part I of the Constitution Act 1982 being Schedule B to the Canada Act 1982 (UK) 1982 c 1178 Ibid s 879 Ibid s 9
35
SECTION 5 LEGAL ANALYSIS OF THE PUBLIC WORKS PROTECTION ACT
A Legal Analysis of the Legislation
Many stakeholders have questioned the constitutional validity of the PWPA and O Reg
23310 The Ontario Ombudsman seriously questioned whether O Reg 23310 could
pass ldquoconstitutional musterrdquo80 The CCLA suggested that the broad police powers
granted under the PWPA were inconsistent with the Charter81
To the same effect were comments made by Premier Dalton McGuinty who described
the PWPA as ldquoan archaic law that was used to undermine Torontoniansrsquo civil rights
during the G20rdquo82 He elaborated83
The issue is whether itrsquos appropriate given our present-day values and given an old law which I am confident doesnrsquot strike the balance that you and I would want today in terms of public safety and individual freedom of expressionhellipWhen you start talking about civil rights individual freedoms yoursquore talking about those things that in fact define us as a free and democratic societyhellipItrsquos something that is real and meaningful and important to all of us
The Terms of Reference for this Review do not require that I conduct a constitutional
analysis of the PWPA I have however been asked to consider areas for reform and if
appropriate make specific recommendations for amendment or repeal This does require
that I therefore consider whether the legislation may be vulnerable to constitutional
challenge
Section 2(b) of the Charter guarantees everyone the fundamental freedom of expression
The definition of ldquoexpressionrdquo has been interpreted broadly ldquoActivity is expressive if it
80 Supra note 32 at para 23381 Supra note 26 p 982 Robert Benzie and Rob Ferguson ldquoMcGuinty shifts focus to fixing G20 lawrdquo Toronto Star (10 December 2010) online thestarcom lthttpwwwthestarcomnewscanadaarticle905436--mcguinty-shifts-focus-to-fixing-g20-lawgt 83 Ibid
36
attempts to convey meaningrdquo84 While freedom of expression is not absolute there is
very little that is not considered expression However expression that advocates violence
is not protected under s 2(b)85
The Supreme Court of Canada in Committee for the Commonwealth of Canada v
Canada held that s 2(b) ldquodoes not encompass the right to use any and all government
property for purposes of disseminating onersquos views on public matters but I have no doubt
that it does include the right to use for that purpose streets and parks which are dedicated
to the use of the public subject no doubt to reasonable regulation to ensure their
continued use for the purposes to which they are dedicatedrdquo86 It seems clear that
protesting in public streets is a form of expression protected by s 2(b) Protesting at an
intergovernmental conference is clearly expressive in nature
In challenges alleging that a statute contravenes s 2(b) of the Charter a court would
examine whether the purpose or effect of a law contravenes section 2(b)87 There is no
reason to suggest that the purpose of the PWPA was to infringe the freedom of
expression The purpose of the PWPA is to protect important public infrastructures A
court would then have to consider whether the effect of the PWPA may have resulted in
an infringement of freedom of expression
O Reg 23310 defined significant portions of downtown Toronto as a ldquopublic workrdquo
Section 3(c) of the PWPA allows peace officers to refuse entry into public works which
therefore limits the areas in which protesters could express themselves By creating the
84 Irwin Toy Ltd v Queacutebec (Attorney General) [1989] 1 SCR 927 at 96885 Ibid at 97086 [1991] 1 SCR 139 at 165-16687 Peter Hogg Constitutional Law of Canada loose-leaf (consulted on 7 January 2011) 5th ed (Toronto Thomson Reuters Canada Limited 2007) at 43-6
37
relatively large security perimeter designated by the regulation individuals may allege
they were not permitted to communicate directly with those they were protesting against
Furthermore individuals could not communicate in public places such as public streets
where the right to freedom of expression has previously been found to exist88
Commissioner Ted Hughes completed an interim report following a public hearing into
the complaints regarding events that took place with respect to the Asia Pacific Economic
Cooperation (APEC) Conference in Vancouver British Columbia in November 1997
Commissioner Hughes recommended that generous opportunity should be afforded to
peaceful protesters to be seen in their protest activities by guests at the event89
Section 7 of the Charter provides that ldquoEveryone has the right to life liberty and security
of the person and the right not to be deprived thereof except in accordance with the
principles of fundamental justicerdquo The PWPA raises issues regarding the liberty and
security of the person in providing for warrantless searches and stopping for
identification Furthermore vague laws offend two fundamental values of our legal
system90 Firstly individuals are not provided with sufficient guidance as to what
behaviour a law prohibits Secondly those in charge of enforcing the law are not
provided with clear guidance as to how to enforce it A vague law can lead to inconsistent
and arbitrary enforcement91
88 Supra note 86 89 Canada Commission for Public Complaints Against the RCMP APEC ndash Commission Interim Report (31 July 2001) at s 3111 (Commissioner Ted Hughes QC) online Commission for Public Complaints Against the RCMP lthttpwwwcpc-cppgccaprrrepphrapecapec-31-engaspxgt90 Supra note 87 at 47-60 91 ldquoA vague provision does not provide an adequate basis for legal debate that is for reaching a conclusion as to its meaning by reasoned analysis applying legal criteria It does not sufficiently delineate any area of risk and thus can provide neither fair notice to the citizen nor a limitation of enforcement discretion Such
38
As described by Professor Hogg92
The requirement that any limit on rights be prescribed by law reflects two values that are basic to constitutionalism or the rule of law First in order to preclude arbitrary and discriminatory action by government officials all official action in derogation of rights must be authorized by law Secondly citizens must have reasonable opportunity to know what is prohibited so that they can act accordingly Both these values are satisfied by a law that fulfils two requirements (1) the law must be adequately accessible to the public and (2) the law must be formulated with sufficient precision to enable people to regulate their conduct by it and to provide guidance to those who apply the law
As I stated earlier the phrase ldquoany approach theretordquo contained in s 3(a) of the PWPA is
potentially vague No criteria are provided to assist in determining when one is on ldquoany
approach theretordquo A phrase such as ldquoany approach theretordquo is subject to many potential
interpretations It is arguable that this language does not provide reasonable guidance for
individuals to obey the law and for the law to be consistently enforced
Section 8 of the Charter provides that ldquoEveryone has the right to be secure against
unreasonable search or seizurerdquo A warrantless search or seizure is only reasonable if the
search was authorized by law the law itself is reasonable and the manner in which the
search carried out was reasonable93 The fact that no reasonable or probable suspicions
are needed to carry out a search pursuant to s 3(b) of the PWPA raises some issues The
only prerequisite to such a search is that the person or vehicle being subjected to a search
is entering or attempting to enter a public work
a provision is not intelligible to use the terminology of previous decisions of this Court and therefore it fails to give sufficient indications that could fuel a legal debaterdquo (R v Nova Scotia Pharmaceutical Society [1992] 2 SCR 606 at 639-640) 92 Supra note 87 at 38-1293 R v Nolet [2010] SCJ No 24 at para 21
39
Whether the PWPArsquos s 3(b) authority to undertake warrantless searches is ldquoreasonablerdquo
depends on the reasonableness of the impact on the subject of the search ldquoThe
individuals reasonable expectation of privacy must of course be balanced against the
public interest in effective law enforcementrdquo94 It is harder to justify a warrantless search
where the reasonable expectation of privacy is higher For example interference with
bodily integrity will raise the standard of reasonableness Conversely in situations where
people expect to have a lower level of privacy the standard to prove reasonableness is
lower
One rightfully has some expectation of privacy when in public but it does not rise to the
level of privacy that one expects in onersquos home The expectation of privacy further
decreases when one attempts to enter a ldquopublic workrdquo especially in the context of a
secured barrier to an intergovernmental conference
Section 9 of the Charter provides that ldquoEveryone has the right not to be arbitrarily
detained or imprisonedrdquo95 Under s 3(a) of the PWPA a person entering or attempting to
enter or approach a public work must provide his or her name and address and state the
purpose for which he or she desires to enter the public work In order for a guard or
peace officer to carry out this duty the guard or peace officer may ldquostoprdquo the person from
further approaching or entering the public work and the person is not permitted under the
statute to decide not to enter By so doing it is arguable the guard or peace officer has
assumed control over the movement of the individual by a demand or direction The
94 R v Rao [1984] OJ No 3180 at para 79 (CA)95 ldquoDetention under s 9hellipof the Charter refers to a suspension of the individualrsquos liberty interest by a significant physical or psychological restraint Psychological detention is established either where the individual has a legal obligation to comply with the restrictive request or demand or a reasonable person would conclude by reason of the state conduct that he or she had no choice but to complyrdquo (R v Grant [2009] SCJ No 32 at para 44)
40
PWPA provides for a significant legal consequence if the demand or direction is not
followed since ldquoEvery person who neglects or refuses to comply with a request or
direction made under this Act by a guard or peace officer and every person found upon a
public work or any approach thereto without lawful authority the proof whereof lies on
him or her is guilty of an offence and on conviction is liable to a fine of not more than
$500 or to imprisonment for a term of not more than two months or to bothrdquo96
Pursuant to s 3(b) of the PWPA a guard or peace officer may search any person entering
or attempting to enter a public work These searches would necessitate the detention of a
person If a guard or peace officer performs such a search he or she has taken control
over the movement of the person by a demand or direction The same serious legal
consequence results from failing to obey this demand or direction as that which results
from failing to obey the demand or direction pursuant to s 3(a) of the PWPA As a
result ldquodetentionsrdquo could occur pursuant to both s 3(a) and s 3(b) of the PWPA
The question that would need to be addressed in any challenge to the PWPA is whether
the detentions permitted by the PWPA are arbitrary in nature The use of the term ldquoany
approach theretordquo is vague and imprecise A person could be deemed to be on ldquoany
approach theretordquo a great distance from the entrance of a public work and their detention
might very well be arbitrary In addition the fact that the guards and peace officers
determine the boundaries of the ldquoapproachesrdquo which cannot be contested seems
arbitrary as well as who they chose to search
96 It should be noted that not all communications with state authorities and police officers will amount to a detention The question is whether a person may reasonably believe that he or she is free to refuse to comply
41
Section 11(d) of the Charter provides that ldquoAny person charged with an offence has the
right to be presumed innocent until proven guilty according to law in a fair and public
hearing by an independent and impartial tribunalrdquo This requires that the Crown have the
burden of proving the guilt of an individual charged with an offence97 Provisions that
place the burden on the accused to disprove on the balance of probabilities an essential
element of an offence raises s 11(d) concerns because convictions would be possible
even if reasonable doubt existed98 The presumption of innocence is not only infringed
upon by a requirement that an accused disprove an essential element of an offence but
also any requirement on an accused to prove a fact on the balance of probabilities to
avoid conviction
Section 5(1) of the PWPA states that ldquoEvery person who neglects or refuses to comply
with a request or direction made under this Act by a guard or peace officer and every
person found upon a public work or any approach thereto without lawful authority the
proof whereof lies on him or her is guilty of an offence and on conviction is liable to a
fine of not more than $500 or to imprisonment for a term of not more than two months or
to bothrdquo For the offence of being found upon a public work or on any approach to a
public work without lawful authority the burden of proof has been ldquoshiftedrdquo from the
Crown to the accused to prove lawful authority
As the foregoing analysis reveals there are certainly many concerns that arise when one
places the PWPA under the lens of the Charter However the rights and freedoms
provided by the Charter are not absolute They are ldquosubject only to such reasonable
97 R v Oakes [1986] 1 SCR 10398 Ibid at 132
42
limits prescribed by law as can be demonstrably justified in a free and democratic
societyrdquo99
In assessing whether a law which infringes the Charter is saved by s 1 a court examines
both the object of the law and the measures taken to achieve that objective A lawrsquos
objective achieves the status of being sufficiently important to justify overriding a
Charter right only when it is consistent with the values of a free and democratic society
The objective must relate to pressing and substantial concerns and not concerns that are
trivial and must be focussed on ldquothe realization of collective goals of fundamental
importancerdquo100 The measures adopted must be ldquorationally connectedrdquo to the objective of
the law101 The measures ldquoshould impair lsquoas little as possiblersquo the right or freedom in
questionrdquo102 Furthermore there must be ldquoa proportionality between the effects of the
measures which are responsible for limiting the Charter right or freedom and the
objective which has been identified as of lsquosufficient importancersquordquo103
An issue that may affect whether the potential limitation on rights and freedoms of the
PWPA and O Reg 23310 were ldquoprescribed by lawrdquo is whether the regulation was
adequately accessible to the public The Ontario Ombudsman the CCLA and the Ontario
Bar Association (ldquoOBArdquo) all noted a lack of notice regarding O Reg 23310 and its
effects prior to and during the G20 While the text of the regulation was available prior
99 Charter s 1 The Superior Court of Quebec decision of Tremblay v Queacutebec (Attorney General) [2001] JQ No 1504 (CS) involved an interim injunction brought by an applicant who was denied entry into the secured perimeter during the 2001 Summit of the Americas in Queacutebec City The applicant sought an injunction to either eliminate the security barrier or to be given a pass to let him within the secured perimeter Even though the Court held that the erection of the security zone violated the applicantrsquos right to freedom of expression and peaceful assembly The court held that the infringement was ldquodemonstrably justified in a free and democratic societyrdquo100 Supra note 97 at 136101 Ibid at 139102 Ibid103 Ibid
43
to the G20 it was only available on a website not frequently accessed by the public
Since O Reg 23310 was not published in The Ontario Gazette until after it was
revoked it may be that the regulation was not adequately accessible to the public
Reverse onus offences have been found to be ldquorationally connectedrdquo when there is plainly
a rational connection between the proven fact and the fact to be presumed Reverse
onuses have also been upheld when the burden placed on the Crown would be virtually
impossible to meet (such as proving sanity)104 Even if the accused only has the burden
of disproving the fact that heshe did not have lawful authority to be in a public work or
on an approach thereto there may not be a rational connection between the proven fact
and the fact to be presumed
The history of threats and violence at previous intergovernmental conferences
demonstrated that the protection of G20 participants was a pressing and substantial
concern However given the broadness of the PWPA every exercise of it raises the
potential for Charter scrutiny
Recommendation
Given the public policy considerations I have raised regarding the PWPA and Charter
concerns that could arise I recommend that the PWPA be repealed after the Province has
considered potential policy and security gaps as a result of its repeal
B Other uses of the Public Works Protection Act
It appears from my consultations with stakeholder groups that if the PWPA is repealed
104 R v Chaulk [1990] 3 SCR 1303 at 1340
44
there are two areas which may require legislation to provide specific peace officer
powers These two areas are court security and the protection of nuclear power facilities
and other power generating infrastructures
1 Court Security
During my decade as Ontariorsquos Attorney General (1975 to 1985) there were three
murders in provincial courthouses as well as many threats to members of courthouse staff
and others As violent acts in courthouses can be anticipated courtroom security is often
required
Individuals are compelled to go to court for a variety of reasons such as appearing as an
accused as a witness or for jury duty To provide protection to those who work there or
are compelled to attend an adequate level of court security may require a search without
warrant of each and every individual who seeks to enter a courthouse It is not reasonable
to require prior judicial authorization for each search that takes place
The courts have considered the constitutionality of these provisions of the PWPA in
conjunction with section 137 of the Ontario Police Services Act in the context of court
security
Section 137 of the Ontario Police Services Act imposes a responsibility on municipal
police services boards to secure the premises where court proceedings are conducted and
includes
1 Ensuring the security of judges and of persons taking part in or attending proceedings
45
2 During the hours when judges and members of the public are normally present ensuring the security of the premises
3 Ensuring the secure custody of persons in custody who are on or about the premises including persons taken into custody at proceedings
4 Determining appropriate levels of security for the purposes of paragraphs 1 2 and 3
In R v Campanella105 Ms Campanella was attending the John Sopinka Courthouse in
Hamilton At the courthouse there were signs posted stating that those who entered
would be searched for weapons When Ms Campanellarsquos bag was searched marijuana
was found and she was charged with the possession of marijuana She argued that her s
8 Charter protection against unreasonable search and seizure had been violated and the
marijuana discovered during the search should therefore be excluded as evidence The
trial judge and the summary convictions appeal court rejected the section 8 Charter
argument and the appellant appealed to the Ontario Court of Appeal
The Ontario Court of Appeal agreed that ldquogiven the importance of the government
objective and the context in which these searches take place it is reasonable to authorize
warrantless searches of those entering courthouse facilitiesrdquo106 The Court stated ldquothe
only effective way to diminish the risk in a large courthouse is to subject everyone
without prior security clearance to some kind of inspection I can see no other feasible
means of achieving the aimrdquo107
The Court also pointed out the concern relating to the erosion of the benefits and
105 [2002] OJ No 5104 (SCJ) affrsquod [2005] OJ No 1345 (CA) [ldquoCampanellardquo]106 R v Campanella [2005] OJ No 1345 at para 17 (CA)107 Ibid at para 19
46
protections conferred by s 8 of the Charter108
I am sensitive to the concern that we should not erode the benefits and protections of s 8 by gradually sanctioning ever-greater intrusions into privacy because of unfounded fears We should not lightly accept that searches in public places are justified solely because people have become used to them and expect them However the record in this case establishes the justification for the kinds of searches carried out in this case
Ultimately the appeal was dismissed and s 137 of the Police Services Act and s 3(b) of
the PWPA) were held to comply with s 8 of the Charter109
In its consultations with me the OBA similarly stated that the existing nature of court
security is necessary and is generally ldquowell toleratedrdquo At the same time however it
submits that the security regime should not be ldquoshoehornedrdquo into the PWPA regime and
that it would be preferable to provide a legislative framework tailored for the specific
security requirements While the PWPA has been relied upon as support for the exercise
of powers by the police in providing court security the OBA submits that the PWPArsquos
ldquosingle security schemerdquo which declares something a ldquopublic workrdquo is an ldquoawkward
blunt instrument in a world where more specialized tools are necessaryrdquo When
warrantless searches are being done on a routine basis it is advisable to have specific
legislation providing peace officers with such power
Recommendation
Court security legislation is currently in place in many jurisdictions across Canada and
contain provisions that permit warrantless searches of persons wanting to access a
108 Ibid at para 25109 The Court in R v SS [2005] OJ No 5002 (SCJ) agreed with the findings and rationale of the Court of Appeal in Campanella
47
courthouse The constitutional validity of such legislation in Manitoba was upheld by that
provincersquos highest court110
Given the ongoing need for warrantless searches at courthouses the Province of Ontario
should consider specific court security legislation in Ontario to support the security
measures in our courthouses if the PWPA is to be repealed taking into consideration the
responsibilities of the municipal police services boards provided in s 137 of the Police
Services Act This legislation should only be passed after proper notice consultation and
legislative debate
2 Power Generating Infrastructures
It is clear from the submissions that I received from representatives of OPG and the
Canadian Nuclear Safety Commission (ldquoCNSCrdquo) that the PWPA currently plays a role in
providing security officers with the powers to secure power generating infrastructures
including the ability to carry firearms and the ability to stop and require identification
from those in proximity to those nuclear plants
Security is of the utmost importance in protecting a nuclear power plant Members of the
public do not need to access a nuclear or similar power facility unless employed at the
facility or carrying out work for the facility111
The security of areas within nuclear power plants is governed by the Nuclear Security
110 R v Lindsay [2004] MJ No 380 (CA) 111 Though the discussion focuses on nuclear power plants I have been informed that other power generating infrastructures use the PWPA to designate their security officers as guards As a result if the PWPA is repealed it will be necessary to broaden the consultations in relation to these other power generating infrastructures
48
Regulations112 Every nuclear power plant must be located within a ldquoprotected areardquo113
This protected area is the area within a fenced perimeter which is alarmed and
continually patrolled This area must be equipped with devices that employ two
independent systems to detect intrusion into the area114 The Nuclear Security
Regulations also provide detailed specifications for the barrier which must enclose the
protected area115 In addition licensees must ldquoidentify all vital areas and implement
physical protection measures ndash including access control and measures designed to delay
unauthorized accessrdquo116
The Nuclear Security Regulations also provide detailed provisions regarding entry into
protected areas No person can ldquoenter a protected area without physical proof of the
recorded authorization of the licenseerdquo117 Further to this on entry into a protected area
ldquothat personrsquos identity shall be verified by two separate personnel identity verification
systems one of which is an access card reader and the other of which is a biometric
personnel identity verification devicerdquo118 Licensees must also ldquoensure that vehicle
portals are used for the entry and exit of land vehicles into and from a protected areardquo119
Physical protection measures are also required to reduce the chance of a forced land
vehicle entry into a protected area120
The power to conduct searches upon entry to a protected area is also provided by the
112 SOR2000-209 113 Ibid s 8114 Ibid s 11(a)(i)115 Ibid s 9116 Ibid s 141117 Ibid s 17(1)118 Ibid s 171119 Ibid s 91(1)120 Ibid s 91(4)
49
Nuclear Security Regulations Signs must be posted that are visible to people about to
enter the protected area stating that they must allow a nuclear security officer (ldquoNSOrdquo) to
ldquosearch them and everything in their possession including any land vehicle for weapons
and explosive substancesrdquo121 In addition when leaving the protected area people must
allow NSOs to ldquosearch them and everything in their possession including any land
vehicle for Category I II or III nuclear materialrdquo122 People are not permitted to enter or
leave a protected area unless these searches are carried out123 The Nuclear Security
Regulations provide for the method of search including ldquoa hand-held scanner a walk-
through scanner or any similar devicerdquo124 In addition if an NSO determines it
necessary a frisk search can be carried out by a person of the same sex125
I have been informed that the area outside of but adjacent to the ldquoprotected areardquo is
referred to as the ldquocontrolled areardquo This area includes roadways and waterways within
the nuclear facilityrsquos property boundaries adjacent to or in close proximity to the nuclear
power plantrsquos protected area and may be generally accessible to the public
As a result of the September 11 2001 terrorist attacks the Nuclear Security Regulations
were amended to require that high security nuclear facilities maintain an on-site armed
Nuclear Response Force (ldquoNRFrdquo)126 The NRF is composed of specialized NSOs
Section 32 of the Nuclear Security Regulations requires the NRF to be capable of making
an effective intervention taking into account the threat
121 Ibid s 27(1)(a)122 Ibid s 27(1)(b)123 Ibid s 27(2)124 Ibid s 27(5)(a)125 Ibid s 27(5)(b)126 Ibid s 32
50
Members of the NRF are mandated by the Nuclear Security Regulations to be ldquotrained in
the use of firearms authorized to carry firearms in Canada and qualified to use themrdquo127
However to satisfy this requirement the NRF resorts to the PWPA since the federal
regulations do not authorize the NRF to carry firearms without a licence However
under s 2(1) of the PWPA NSOs are designated as ldquoguardsrdquo with the powers of a peace
officer most significantly to carry and use firearms without having to be licensed128
Such a designation also enables the OPG to acquire and dispose of firearms
In the consultations I had with the OPG and the CNSC they advised me that NSOs
receive training equivalent to Canadian police standards and that NRF officers receive
training equivalent to federal and provincial police tactical team requirements
Another aspect of the PWPA used to secure nuclear power plants relates to powers
exercised by NSOs in ldquocontrolled areasrdquo The federal regulations do not provide the
NSOs with any power to demand identification within this area However pursuant to
the PWPA as appointed ldquoguardsrdquo the NSOs have the power to demand identity
verification in the controlled area They also have the authority to arrest anyone who
obstructs NSOs in the performance of their duties under the PWPA
In addition to using the PWPA to secure the controlled areas I have been advised by the
OPG that NSOs use powers pursuant to the PWPA to secure areas within 100 metres of a
nuclear facilityrsquos property line immediately adjacent to the controlled area These powers
are exercised under the broad language of the PWPA regarding ldquoapproaches to public
127 Ibid s 1 (on-site nuclear response force definition)128 Section 11707 of the Criminal Code exempts peace officers from licensing requirements for possessing firearms and other prohibited and restricted weapons
51
worksrdquo This is an illustration of the problem with the vagueness of this language in the
legislation As these powers are exercised on public land they could be challenged as a
potential infringement on individual rights and freedoms However I have been advised
that there have been no such incidents to date The need to ensure the security of these
facilities must be taken into the balance
NSOs must be able to monitor and control access to the controlled areas and areas close
to a nuclear power plantrsquos property line This provides for a more secure perimeter
around these facilities They need authority to challenge individuals acting in a suspicious
manner or conducting surveillance of nuclear facilities The OPG has informed me that
areas outside a nuclear facilityrsquos property line immediately adjacent to the controlled
area are still close enough to take advantage of the short distance to conduct intelligence
using high-powered surveillance equipment These nuclear power plants are not located
on isolated islands and are therefore vulnerable Both the Pickering Nuclear Generating
Station and the Darlington Nuclear Generating Station operate within major urban areas
being 30 km and 60 km east of downtown Toronto respectively I am advised that
previous events such as ldquoThe Toronto 18rdquo129 have shown that those intent on targeting
vital infrastructure such as power generating facilities often use reconnaissance and
intelligence gathering as precursor tactics
Recommendation
If the PWPA is to be repealed it is imperative that those who secure our nuclear and
power generating facilities be given the requisite specific legislative powers to do so
129 See for example ldquoLast 2 Toronto 18 accused found guiltyrdquo CBC News (23 June 2010) online cbcca lthttpwwwcbccanewscanadatorontostory20100623toronto-18-verdicthtmlgt
52
The source for these powers should be set out in the federal Nuclear Security
Regulations However if this is not a desired option the Government of Ontario must
consider specific legislation setting out the specific powers required to properly secure
these facilities and the specific location in which these powers can be exercised Such
legislation should not be passed without proper notice consultation and legislative
debate
53
SECTION 6 CONCLUSION
The PWPA was enacted in 1939 to support the war effort At the time the protection of
Ontariorsquos hydroelectric facilities from sabotage was of particular concern Since then the
PWPA has been used to provide the legal foundation for the powers exercised by the
police in providing court security and even more recently by the OPG in securing
nuclear power facilities In June 2010 the PWPA was used to provide powers to secure
intergovernmental conferences The vagueness of the PWPA permits it to be used in
situations when it is arguably not necessary and potentially abusive In my view the
PWPA has been used for purposes beyond its original intent
The time for the PWPA seems to have passed If the Government of Ontario enacts as I
have suggested specific legislation to provide for courthouse security and power
generating infrastructure security it would appear that there is no longer a need for the
PWPA I am also mindful of the existence of counter-terrorism and emergencies
legislation to deal with these situations as they arise
ldquoIn determining the boundaries of police powers caution is required to ensure the proper
balance between preventing excessive intrusions on an individualrsquos liberty and privacy
and enabling the police to do what is reasonably necessary to perform their duties in
protecting the publicrdquo130 The overly broad and vague language of the PWPA does not
strike this required balance with individual rights and freedoms
The late Justice Jackson of the United States Supreme Court stated that every
emergency power once conferred ldquolies about like a loaded weapon ready for the hand of
130 R v Clayton [2007] 2 SCR 725 at 742
54
any authority that can bring forward a plausible claim of an urgent needrdquo131 The need to
protect the public must be balanced with the requirement to preserve fundamental rights
and freedoms
Yet at the same time ldquoCanadians are entitled to demand the best public order policing
possible from their governmentrdquo132 There is no question that we live in a different world
post 911 We live in difficult times with constant threats both domestically and from
abroad The police clearly need to be given adequate powers to carry out their duties
The police use their expertise on a daily basis to assess the powers they require In
instances when they take action that exceeds their powers their actions are examined by
various mandated bodies This process I believe results in the proper balance between
police powers and individual rights and freedoms Therefore any legislation that purports
to grant special police powers must be specific and direct and developed in consultation
with stakeholders and tested through thorough debate in our transparent democratic
system
131 Korematsu v United States 323 US 214 (1944)132 Supra note 26 p 8
55
do so one applies the standard of what is reasonably necessary in light of the totality of
the circumstances In evaluating whether the conduct of the peace officer was justified it
is important to consider ldquothe duty being performed the extent to which some interference
with individual liberty is necessary in the performance of that duty the importance of the
performance of the duty to the public good the nature of the liberty being interfered with
and the nature and extent of the interferencerdquo37
In Knowlton police in Edmonton cordoned off an area as part of the security
arrangements for the visit of Premier Kosygin of the USSR Premier Kosygin had been
assaulted in Ottawa a few days prior to his visit to Edmonton Knowlton entered the
secured area questioning the power of the peace officer to prevent his entry He was
arrested without a warrant and charged with obstructing a peace officer in the execution
of his duties Knowlton argued that the peace officer did not have the power to prevent
his entry and was not acting in the execution of his duty
The Supreme Court of Canada emphasized the heightened importance of security when
there are visiting foreign dignitaries38
It is notorious and of common knowledge that the official visit of the head of state or high rank dignitary of a foreign country friendly as either may be is an event that frequently engenders a real or apprehended threat to the preservation of peace and that calls therefore for the adoption of proper and reasonable security measures in and by the host countryhellipThe restriction of the right of free access of the public to public streetshellipwas one of the steps--not an unusual one--which police authorities considered and adopted as necessary for the attainment of the purpose aforesaid In my opinion such conduct of the police was clearly falling within the general scope of the duties imposed upon them
37 R v Mann [2004] 3 SCR 59 at 7938 Supra note 34 at 447-448
24
In addressing the first part of the Waterfield test the Court referenced provisions of the
Alberta Police Act and the Criminal Code and concluded that the conduct of the peace
officers fell within the general scope of the duties imposed upon them for example
preservation of the peace and prevention of crime39
According to the principles which for the preservation of peace and prevention of crime underlie the provisions of s 30 amongst others of the Criminal Code these official authorities were not only entitled but in duty bound as peace officers to prevent a renewal of a like criminal assault on the person of Premier Kosygin during his official visit in Canada In this respect they had a specific and binding obligation to take proper and reasonable steps The restriction of the right of free access of the public to public streets at the strategic point mentioned above was one of the steps--not an unusual one--which police authorities considered and adopted as necessary for the attainment of the purpose aforesaid In my opinion such conduct of the police was clearly falling within the general scope of the duties imposed upon them
In analyzing the second step of the Waterfield test the Court concluded that there was no
evidence indicating the police officers resorted to an unjustifiable use of the powers
associated with the duties imposed on them
The Court in Knowlton recognized broad police powers to cordon off areas as part of the
security arrangements involving internationally protected persons In addition the Court
found that the warrantless arrest in that case was not an unjustifiable or unreasonable use
of powers associated with the police duties to preserve the peace order public safety and
to enforce the law and prevent crime Finally the Court found that peace officers were
duty bound ldquoto prevent a renewal of a like criminal assault on the person of Premier
Kosygin during his official visit in Canadardquo40 Furthermore it stated the closing of public
39 Ibid 40 Ibid at 447
25
streets ldquowas one of the steps -- not an unusual one -- which police authorities considered
and adopted as necessaryrdquo41
The Knowlton decision clearly acknowledged that the police had the duty and authority to
establish and enforce a secured area to protect a foreign dignitary In order to carry out
these duties the police may do what is reasonably necessary in light of the totality of the
circumstances
Though Knowlton was decided prior to the enactment of the Canadian Charter of Rights
and Freedoms (the ldquoCharterrdquo) this does not in my view affect the clear statement by the
Supreme Court of Canada regarding the duty of the police under the common law and the
Alberta Police Act to provide this security While the facts of Knowlton were quite
compelling in relation to the obvious need to provide adequate security for Premier
Kosygin the decision is equally important authority regarding the general responsibilities
of the police at common law and statute in relation to the preservation of the peace
B Other Statutory Powers
1 Criminal Code
Some specific powers are provided to peace officers pursuant to the Criminal Code42
Section 31 gives peace officers the power to arrest an individual for breach of the peace
Peace officers can arrest those committing the breach of the peace or those who on
reasonable grounds heshe believe are about to join in or renew the breach of the peace
Peace officers also have powers at their disposal under ss 63-69 of the Criminal Code to
deal with the offences of unlawful assembly and riots
41 Ibid at 447-448 42 RSC 1985 c C-46
26
2 Trespass to Property Act
The Ontario Trespass to Property Act43 is a potential source of police power to arrest
without warrant those who are unlawfully on certain premises or who were recently
unlawfully on the premises and refuse to give their name and address44 This statute
deals with illegal entry into both private and public property by creating the offence of
trespass for those who without the express permission of the occupier enter on to
premises or engage in an activity on the premises when it is prohibited by the statute45
Though this statute is primarily used by private property owners to keep unwanted people
off of their property it has also been invoked by the Speaker of the House46 and by the
City of Toronto47 It must be noted however that using the Trespass to Property Act in
relation to removing individuals from ldquopublicrdquo places may raise Charter issues48
3 Foreign Missions and International Organizations Act
The RCMP as peace officers have the general duty to preserve the peace and prevent
crime and offences as set out in s 18 of the Royal Canadian Mounted Police Act49
Additional duties found in s 17 of the Royal Canadian Mounted Police Regulations
198850 include the protection of ldquointernationally protected personsrdquo as defined in s 2 of
the Criminal Code Internationally protected persons include heads of state and their
43 RSO 1990 c T2144 Ibid ss 9(1) 1045 Ibid s 2(1)46R v Behrens [2004] OJ No 5135 (CJ) The Court held that the issue of the trespass notices fell under the Speakerrsquos parliamentary privilege and were not reviewable even on the basis of a Charter argument47R v Semple [2004] OJ No 2137 (CJ)48 In R v Semple the defendants were charged under the Ontario Trespass to Property Act for entering the grounds of Toronto City Hall after being banned from doing so In the end the Court held that the defendantsrsquo peaceful entry onto the grounds was an expression as per s 2(b) of the Charter Torontorsquos notice under the Act infringed on this freedom and in these circumstances it could not be justified under s 1 of the Charter 49 RSC 1985 c R-1050 SOR88-361
27
family members The RCMPrsquos duty to protect internationally protected persons is also
found in s 6(1) of the Security Offences Act51
In addition Canada is a signatory of the United Nations Convention on the Prevention
and Punishment of Crimes against Internationally Protected Persons including
Diplomatic Agents52 This Convention provides that the Government of Canada must
protect visiting heads of state or government foreign ministers representatives or
officials of a state or any official or other agent of an international organization of an
intergovernmental character and the family members that accompany him or her The
RCMP has the responsibility to carry out these security measures
Pursuant to s 101(1) of the FMIOA ldquoThe Royal Canadian Mounted Police has the
primary responsibility to ensure the security for the proper functioning of any
intergovernmental conference in which two or more states participate that is attended by
persons granted privileges and immunities under this Act and to which an order made or
continued under this Act appliesrdquo
The powers to carry out this mandate are found in s 101(2) of the FMIOA ldquothe Royal
Canadian Mounted Police may take appropriate measures including controlling limiting
or prohibiting access to any area to the extent and in a manner that is reasonable in the
circumstancesrdquo It is noteworthy that the FMIOA has legislated the same powers
provided to the police under common law and statute
In order to trigger the RCMP powers described in s 101 the Governor in Council on the
51 RSC 1985 c S-752 UNGA Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons including Diplomatic Agents 20 February 1977 UN Doc I-15410
28
recommendation of the Minister of Foreign Affairs and pursuant to s 5 of the FMIOA
made the G8 Summit Privileges and Immunities Order 201053 on December 10 2009
This order was repealed and a subsequent order54 was made on January 13 2010 A
similar order55 for the G20 Summit was made on March 11 201056
Therefore during the G20 the RCMP had the specific statutory power to limit or
prohibit access to any area and to any extent as long as the measures were appropriate
and done in a manner that was reasonable in the circumstances ldquoThe RCMP may secure
the perimeter of the security zone on land with fencing and restrict access to this zone
through the use of checkpoints and other measuresrdquo57
Though not invoked during the G20 s 101(4) of the FMIOA provides that arrangements
can be entered into with a province concerning the responsibilities of members of the
RCMP and members of the provincial and municipal police forces with respect to
ensuring the security for the proper functioning of an intergovernmental conference No
information was provided to me as to why such an arrangement was not entered into for
the G20
These intergovernmental security provisions of the FMIOA were enacted just prior to the
G8 being held in Kananaskis Alberta in 2002 In light of violent protests at international
events and the 911 terrorist attacks in the United States the Federal Government
53 SOR2009-33654 SOR2010-1355 SOR2010-6256 Supra note 17 ldquoUpon such an Order being made the RCMP in co-operation and collaboration with other police forces becomes impressed with the primary responsibility of ensuring not only the protection of the IPPs but also ensuring lsquosecurity for the proper functioningrsquo of the intergovernmental conference To that end the FMIOA provides that the lsquoappropriate measures including controlling limiting or prohibiting access to any area to the extent and in a manner that is reasonable in the circumstancesrsquo may be takenrdquo57 Ibid
29
considered it timely ldquoto clarify in statute the present common law authority for police to
provide security and protection for high profile international eventsrdquo58 At such events it
was intended that ldquothe RCMP is the lead to make sure that security is providedrdquo59
Given that it was clearly the intention of the Federal Government to have the RCMP as
the lead police force at these international events consideration should be given to
expand the use of the FMIOA to cover all large scale international events such as the
Olympics the Pan American Games and international trade fairs as these events are
routinely attended by heads of state and senior government officials Most recently
Vancouver held the 2010 Olympic and Paralympic Winter Games60 Though federal and
municipal legislation were passed to assist in securing the Games expansion and
application of the FMIOA would have been a better approach The RCMP as the national
police force ought to be in charge pursuant to their authority under the FMIOA
4 Emergency Legislation
Through my consultations with the parties listed in Appendix 2 I heard that while we are
not in a time of war as in 1939 when the PWPA was enacted we live in an age of
international and local terrorism threats Our democratic society must be vigilant in
58 Canada House of Commons Debates 37th Parl 1st Sess No 93 (5 October 2001) at 100059 Canada House of Commons Standing Committee on Public Safety and National Security 40th Parl 3rd
Sess Evidence (25 October 2010)60 In anticipation of this event the Governor General in Council on the recommendation of the Minister of Transport pursuant to the Aeronautics Act (RSC 1985 c A-2) and the Canadian Air Transport Security Authority Act (SC 2002 c 9 s 2) passed the Vancouver 2010 Aviation Security Regulations (SOR2009-298) The purpose of the regulations was to enhance aviation security during the Games The Regulation provided for extra security and extra authorized means to conduct screenings In addition the Vancouver City Council passed the very lengthy By-law No 9962 known as the ldquoVancouver 2010 Olympic and Paralympic Winter Games By-Lawrdquo Specific security measures to be employed at a city live site (described thoroughly in a Schedule to the By-Law) that were enabled by this By-Law included The installation and monitoring of airport style and other security measures including magnetometers and X-ray machines the installation and monitoring of closed circuit television cameras the searching of any person who wished to enter on to a city live site and any bag luggage or other container carried by such person and the prohibiting of access to or removal from a city live site any person who refused to submit to a search
30
maintaining a proper level of security while recognizing that democratic values and
security issues can conflict where public order is at issue It is important to highlight that
provincial legislation exists dealing with both terrorism threats and emergency situations
I have been informed that federal and provincial counter-terrorism plans exist that
address preventing and responding to acts of terrorism
The Police Services Act regulations mandate police forces to establish procedures
consistent with federal and provincial counter-terrorism plans61 and to have policies with
respect to counter-terrorism62 In addition the Emergency Management and Civil
Protection Act allows for orders to be made in situations specifically designated an
ldquoemergencyrdquo63 by the Lieutenant Governor in Council or the Premier that regulate or
prohibit travel and movement to from or within any specified area64 Therefore the
PWPA is not needed to deal with these emergency situations as specific more recent
emergency legislation is in place for that very purpose
C Gaps in Canadian Police Powers
The Ministry of Community Safety and Correctional Services provided me with an
interesting article published in 2010 entitled ldquoThe Gap in Canadian Police Powers
61 Adequacy and Effectiveness of Police Services O Reg 399 s 2862 Ibid s 2963 Section 1 of the Emergency Management and Civil Protection Act defines an ldquoemergencyrdquo as ldquoemergencyrdquo means a situation or an impending situation that constitutes a danger of major proportions that could result in serious harm to persons or substantial damage to property and that is caused by the forces of nature a disease or other health risk an accident or an act whether intentional or otherwise (ldquosituation drsquourgencerdquo)64 RSO 1990 c E9 s 702(4)
31
Canada needs lsquoPublic Order Policingrsquo Legislationrdquo and co-authored by Wesley Pue and
Robert Diab65
This article was prompted by the debate over the cost nature and extent of security to be
employed at the Vancouver 2010 Winter Olympics The authors criticized the fact that
policing authorities in Canada ldquolack specific statutory authorization to take measures
commonly thought necessary to their missionrdquo66 These measures included security
fences in public areas designated protest areas restricted access to public space police
surveillance and searches without cause
The authors recognize that such powers may be necessary but note that ldquono legislature
has ever expressly conferred such powers on policing authorities outside the context of
international intergovernmental conferences Nor does the common law accord such
powers to state officials on its ownrdquo67 I respectfully disagree with this latter statement
It is my view the police have powers pursuant to the common law and statute as I have
discussed in the preceding section
The authors referred to R v Knowlton68 which I have previously discussed While the
authors give Knowlton a very narrow interpretation stating that ldquoits binding principle is a
good deal narrower than the words taken out of context might suggestrdquo69 I however am
of the view that the decision supports the proposition that police have a broad range of
65 Wesley Pue and Robert Diab ldquoThe Gap In Canadian Police Powers Canada Needs lsquoPublic Order Policingrsquo Legislationrdquo (2010) 28 Windsor Rev Legal Soc Issues 87 Wesley Pue is a professor of legal history at the University of British Columbia and Robert Diab is a PhD candidate at the UBC Faculty of Law66 Ibid p 8867 Ibid68 Supra note 3469 Supra note 65 p 92
32
responsibilities with deep historical roots in the common law and codified in statute a
position shared by the Federal Government when it introduced amendments to the
FMIOA The actions of the police in Knowlton were necessarily incidental to their
common law police duties and powers
The authors conclude that this ldquoauthority of police to create zones of exclusion either as
an incident of the general and ancient duties of constableshelliphas never been established in
the courtsrdquo70 I am of the view however that the role of the police in establishing
security zones relating to a crime a serious accident or other emergency is a routine and
well-accepted use of police powers pursuant to their common law and statutory duties I
am not suggesting that this common law authority permits the police to establish security
zones ldquofor the proper functioning of any intergovernmental conference in which two or
more states participaterdquo71 larger than necessary to fulfill their purpose The FMIOA as
amended in 2002 provides the RCMP with ldquoprimary responsibility to ensure the security
for the proper functioning of the intergovernmental conferencerdquo72 It is interesting
however that when the Federal Government was enacting this specific authority the
legislative debates indicated that the government was merely clarifying ldquoin statute the
present common law authority for police to provide security and protection for high
profile international eventsrdquo73
Security perimeters are routinely erected by police in the context of the commission of a
crime motor vehicle and other accidents as well as the Santa Claus parade and other
70 Ibid p 9671 Supra note 8 s 101(1)72 Ibid73 Supra note 58
33
parades It would in my view be quite impractical and unnecessary to legislate an
extensive code of police powers given their common law and statutory responsibilities to
generally maintain public order It is not advisable in my opinion to be prescriptive in
any way regarding what actions the police can take since they must assess what the
situation warrants while at the same time considering individual rights and freedoms
The details of any police response to an emergency must be tailored to the exigencies
related to the situation
The police clearly have common law and statutory authority to conduct warrantless
searches in specific situations (ldquoin exigent circumstancesrdquo)74 However when
warrantless searches must be carried out on a regular routine basis the police are acting
more like full time security guards and there should be specific statutory authority
provided to give such powers
I certainly accept the general proposition the authors assert that the mobility rights of
citizens should not be unreasonably or unfairly dealt with However one only need be
aware of the massive amount of construction taking place on the streets of Toronto as this
Report is being written to appreciate that it is not always reasonable to expect that ldquothe
rights of businesses homeowners and ordinary citizens to go about their routine
activities without interruptionrdquo75 will go unhindered While generally desirable it cannot
be legally guaranteed At the same time the authors do concede that ldquoimportant as they
74 Supra note 42 s 4871175 Supra note 65 p 89
34
are the rights of assembly movement and protest are not unqualified They can ndash and
should ndash be balanced against other important public needsrdquo76
In my view public policing at times requires innovation as it often benefits from
creative problem solving If police abuse their common law powers related to ldquopublic
order policingrdquo they are accountable to a multiplicity of authorities and the rule of law
most particularly the Charter The legal rights outlined in the Charter such as ldquothe
principles of fundamental justicerdquo77 security ldquoagainst unreasonable search and seizurerdquo78
and ldquothe right not to be arbitrarily detained or imprisonedrdquo79 are described very
generally However they were chosen deliberately as it was recognized that in each case
there is an inherent tension between imposing security measures and fundamental rights
and freedoms Determining which is paramount will be based on the facts of each case
76 Ibid p 9177 Canadian Charter of Rights and Freedoms s 7 Part I of the Constitution Act 1982 being Schedule B to the Canada Act 1982 (UK) 1982 c 1178 Ibid s 879 Ibid s 9
35
SECTION 5 LEGAL ANALYSIS OF THE PUBLIC WORKS PROTECTION ACT
A Legal Analysis of the Legislation
Many stakeholders have questioned the constitutional validity of the PWPA and O Reg
23310 The Ontario Ombudsman seriously questioned whether O Reg 23310 could
pass ldquoconstitutional musterrdquo80 The CCLA suggested that the broad police powers
granted under the PWPA were inconsistent with the Charter81
To the same effect were comments made by Premier Dalton McGuinty who described
the PWPA as ldquoan archaic law that was used to undermine Torontoniansrsquo civil rights
during the G20rdquo82 He elaborated83
The issue is whether itrsquos appropriate given our present-day values and given an old law which I am confident doesnrsquot strike the balance that you and I would want today in terms of public safety and individual freedom of expressionhellipWhen you start talking about civil rights individual freedoms yoursquore talking about those things that in fact define us as a free and democratic societyhellipItrsquos something that is real and meaningful and important to all of us
The Terms of Reference for this Review do not require that I conduct a constitutional
analysis of the PWPA I have however been asked to consider areas for reform and if
appropriate make specific recommendations for amendment or repeal This does require
that I therefore consider whether the legislation may be vulnerable to constitutional
challenge
Section 2(b) of the Charter guarantees everyone the fundamental freedom of expression
The definition of ldquoexpressionrdquo has been interpreted broadly ldquoActivity is expressive if it
80 Supra note 32 at para 23381 Supra note 26 p 982 Robert Benzie and Rob Ferguson ldquoMcGuinty shifts focus to fixing G20 lawrdquo Toronto Star (10 December 2010) online thestarcom lthttpwwwthestarcomnewscanadaarticle905436--mcguinty-shifts-focus-to-fixing-g20-lawgt 83 Ibid
36
attempts to convey meaningrdquo84 While freedom of expression is not absolute there is
very little that is not considered expression However expression that advocates violence
is not protected under s 2(b)85
The Supreme Court of Canada in Committee for the Commonwealth of Canada v
Canada held that s 2(b) ldquodoes not encompass the right to use any and all government
property for purposes of disseminating onersquos views on public matters but I have no doubt
that it does include the right to use for that purpose streets and parks which are dedicated
to the use of the public subject no doubt to reasonable regulation to ensure their
continued use for the purposes to which they are dedicatedrdquo86 It seems clear that
protesting in public streets is a form of expression protected by s 2(b) Protesting at an
intergovernmental conference is clearly expressive in nature
In challenges alleging that a statute contravenes s 2(b) of the Charter a court would
examine whether the purpose or effect of a law contravenes section 2(b)87 There is no
reason to suggest that the purpose of the PWPA was to infringe the freedom of
expression The purpose of the PWPA is to protect important public infrastructures A
court would then have to consider whether the effect of the PWPA may have resulted in
an infringement of freedom of expression
O Reg 23310 defined significant portions of downtown Toronto as a ldquopublic workrdquo
Section 3(c) of the PWPA allows peace officers to refuse entry into public works which
therefore limits the areas in which protesters could express themselves By creating the
84 Irwin Toy Ltd v Queacutebec (Attorney General) [1989] 1 SCR 927 at 96885 Ibid at 97086 [1991] 1 SCR 139 at 165-16687 Peter Hogg Constitutional Law of Canada loose-leaf (consulted on 7 January 2011) 5th ed (Toronto Thomson Reuters Canada Limited 2007) at 43-6
37
relatively large security perimeter designated by the regulation individuals may allege
they were not permitted to communicate directly with those they were protesting against
Furthermore individuals could not communicate in public places such as public streets
where the right to freedom of expression has previously been found to exist88
Commissioner Ted Hughes completed an interim report following a public hearing into
the complaints regarding events that took place with respect to the Asia Pacific Economic
Cooperation (APEC) Conference in Vancouver British Columbia in November 1997
Commissioner Hughes recommended that generous opportunity should be afforded to
peaceful protesters to be seen in their protest activities by guests at the event89
Section 7 of the Charter provides that ldquoEveryone has the right to life liberty and security
of the person and the right not to be deprived thereof except in accordance with the
principles of fundamental justicerdquo The PWPA raises issues regarding the liberty and
security of the person in providing for warrantless searches and stopping for
identification Furthermore vague laws offend two fundamental values of our legal
system90 Firstly individuals are not provided with sufficient guidance as to what
behaviour a law prohibits Secondly those in charge of enforcing the law are not
provided with clear guidance as to how to enforce it A vague law can lead to inconsistent
and arbitrary enforcement91
88 Supra note 86 89 Canada Commission for Public Complaints Against the RCMP APEC ndash Commission Interim Report (31 July 2001) at s 3111 (Commissioner Ted Hughes QC) online Commission for Public Complaints Against the RCMP lthttpwwwcpc-cppgccaprrrepphrapecapec-31-engaspxgt90 Supra note 87 at 47-60 91 ldquoA vague provision does not provide an adequate basis for legal debate that is for reaching a conclusion as to its meaning by reasoned analysis applying legal criteria It does not sufficiently delineate any area of risk and thus can provide neither fair notice to the citizen nor a limitation of enforcement discretion Such
38
As described by Professor Hogg92
The requirement that any limit on rights be prescribed by law reflects two values that are basic to constitutionalism or the rule of law First in order to preclude arbitrary and discriminatory action by government officials all official action in derogation of rights must be authorized by law Secondly citizens must have reasonable opportunity to know what is prohibited so that they can act accordingly Both these values are satisfied by a law that fulfils two requirements (1) the law must be adequately accessible to the public and (2) the law must be formulated with sufficient precision to enable people to regulate their conduct by it and to provide guidance to those who apply the law
As I stated earlier the phrase ldquoany approach theretordquo contained in s 3(a) of the PWPA is
potentially vague No criteria are provided to assist in determining when one is on ldquoany
approach theretordquo A phrase such as ldquoany approach theretordquo is subject to many potential
interpretations It is arguable that this language does not provide reasonable guidance for
individuals to obey the law and for the law to be consistently enforced
Section 8 of the Charter provides that ldquoEveryone has the right to be secure against
unreasonable search or seizurerdquo A warrantless search or seizure is only reasonable if the
search was authorized by law the law itself is reasonable and the manner in which the
search carried out was reasonable93 The fact that no reasonable or probable suspicions
are needed to carry out a search pursuant to s 3(b) of the PWPA raises some issues The
only prerequisite to such a search is that the person or vehicle being subjected to a search
is entering or attempting to enter a public work
a provision is not intelligible to use the terminology of previous decisions of this Court and therefore it fails to give sufficient indications that could fuel a legal debaterdquo (R v Nova Scotia Pharmaceutical Society [1992] 2 SCR 606 at 639-640) 92 Supra note 87 at 38-1293 R v Nolet [2010] SCJ No 24 at para 21
39
Whether the PWPArsquos s 3(b) authority to undertake warrantless searches is ldquoreasonablerdquo
depends on the reasonableness of the impact on the subject of the search ldquoThe
individuals reasonable expectation of privacy must of course be balanced against the
public interest in effective law enforcementrdquo94 It is harder to justify a warrantless search
where the reasonable expectation of privacy is higher For example interference with
bodily integrity will raise the standard of reasonableness Conversely in situations where
people expect to have a lower level of privacy the standard to prove reasonableness is
lower
One rightfully has some expectation of privacy when in public but it does not rise to the
level of privacy that one expects in onersquos home The expectation of privacy further
decreases when one attempts to enter a ldquopublic workrdquo especially in the context of a
secured barrier to an intergovernmental conference
Section 9 of the Charter provides that ldquoEveryone has the right not to be arbitrarily
detained or imprisonedrdquo95 Under s 3(a) of the PWPA a person entering or attempting to
enter or approach a public work must provide his or her name and address and state the
purpose for which he or she desires to enter the public work In order for a guard or
peace officer to carry out this duty the guard or peace officer may ldquostoprdquo the person from
further approaching or entering the public work and the person is not permitted under the
statute to decide not to enter By so doing it is arguable the guard or peace officer has
assumed control over the movement of the individual by a demand or direction The
94 R v Rao [1984] OJ No 3180 at para 79 (CA)95 ldquoDetention under s 9hellipof the Charter refers to a suspension of the individualrsquos liberty interest by a significant physical or psychological restraint Psychological detention is established either where the individual has a legal obligation to comply with the restrictive request or demand or a reasonable person would conclude by reason of the state conduct that he or she had no choice but to complyrdquo (R v Grant [2009] SCJ No 32 at para 44)
40
PWPA provides for a significant legal consequence if the demand or direction is not
followed since ldquoEvery person who neglects or refuses to comply with a request or
direction made under this Act by a guard or peace officer and every person found upon a
public work or any approach thereto without lawful authority the proof whereof lies on
him or her is guilty of an offence and on conviction is liable to a fine of not more than
$500 or to imprisonment for a term of not more than two months or to bothrdquo96
Pursuant to s 3(b) of the PWPA a guard or peace officer may search any person entering
or attempting to enter a public work These searches would necessitate the detention of a
person If a guard or peace officer performs such a search he or she has taken control
over the movement of the person by a demand or direction The same serious legal
consequence results from failing to obey this demand or direction as that which results
from failing to obey the demand or direction pursuant to s 3(a) of the PWPA As a
result ldquodetentionsrdquo could occur pursuant to both s 3(a) and s 3(b) of the PWPA
The question that would need to be addressed in any challenge to the PWPA is whether
the detentions permitted by the PWPA are arbitrary in nature The use of the term ldquoany
approach theretordquo is vague and imprecise A person could be deemed to be on ldquoany
approach theretordquo a great distance from the entrance of a public work and their detention
might very well be arbitrary In addition the fact that the guards and peace officers
determine the boundaries of the ldquoapproachesrdquo which cannot be contested seems
arbitrary as well as who they chose to search
96 It should be noted that not all communications with state authorities and police officers will amount to a detention The question is whether a person may reasonably believe that he or she is free to refuse to comply
41
Section 11(d) of the Charter provides that ldquoAny person charged with an offence has the
right to be presumed innocent until proven guilty according to law in a fair and public
hearing by an independent and impartial tribunalrdquo This requires that the Crown have the
burden of proving the guilt of an individual charged with an offence97 Provisions that
place the burden on the accused to disprove on the balance of probabilities an essential
element of an offence raises s 11(d) concerns because convictions would be possible
even if reasonable doubt existed98 The presumption of innocence is not only infringed
upon by a requirement that an accused disprove an essential element of an offence but
also any requirement on an accused to prove a fact on the balance of probabilities to
avoid conviction
Section 5(1) of the PWPA states that ldquoEvery person who neglects or refuses to comply
with a request or direction made under this Act by a guard or peace officer and every
person found upon a public work or any approach thereto without lawful authority the
proof whereof lies on him or her is guilty of an offence and on conviction is liable to a
fine of not more than $500 or to imprisonment for a term of not more than two months or
to bothrdquo For the offence of being found upon a public work or on any approach to a
public work without lawful authority the burden of proof has been ldquoshiftedrdquo from the
Crown to the accused to prove lawful authority
As the foregoing analysis reveals there are certainly many concerns that arise when one
places the PWPA under the lens of the Charter However the rights and freedoms
provided by the Charter are not absolute They are ldquosubject only to such reasonable
97 R v Oakes [1986] 1 SCR 10398 Ibid at 132
42
limits prescribed by law as can be demonstrably justified in a free and democratic
societyrdquo99
In assessing whether a law which infringes the Charter is saved by s 1 a court examines
both the object of the law and the measures taken to achieve that objective A lawrsquos
objective achieves the status of being sufficiently important to justify overriding a
Charter right only when it is consistent with the values of a free and democratic society
The objective must relate to pressing and substantial concerns and not concerns that are
trivial and must be focussed on ldquothe realization of collective goals of fundamental
importancerdquo100 The measures adopted must be ldquorationally connectedrdquo to the objective of
the law101 The measures ldquoshould impair lsquoas little as possiblersquo the right or freedom in
questionrdquo102 Furthermore there must be ldquoa proportionality between the effects of the
measures which are responsible for limiting the Charter right or freedom and the
objective which has been identified as of lsquosufficient importancersquordquo103
An issue that may affect whether the potential limitation on rights and freedoms of the
PWPA and O Reg 23310 were ldquoprescribed by lawrdquo is whether the regulation was
adequately accessible to the public The Ontario Ombudsman the CCLA and the Ontario
Bar Association (ldquoOBArdquo) all noted a lack of notice regarding O Reg 23310 and its
effects prior to and during the G20 While the text of the regulation was available prior
99 Charter s 1 The Superior Court of Quebec decision of Tremblay v Queacutebec (Attorney General) [2001] JQ No 1504 (CS) involved an interim injunction brought by an applicant who was denied entry into the secured perimeter during the 2001 Summit of the Americas in Queacutebec City The applicant sought an injunction to either eliminate the security barrier or to be given a pass to let him within the secured perimeter Even though the Court held that the erection of the security zone violated the applicantrsquos right to freedom of expression and peaceful assembly The court held that the infringement was ldquodemonstrably justified in a free and democratic societyrdquo100 Supra note 97 at 136101 Ibid at 139102 Ibid103 Ibid
43
to the G20 it was only available on a website not frequently accessed by the public
Since O Reg 23310 was not published in The Ontario Gazette until after it was
revoked it may be that the regulation was not adequately accessible to the public
Reverse onus offences have been found to be ldquorationally connectedrdquo when there is plainly
a rational connection between the proven fact and the fact to be presumed Reverse
onuses have also been upheld when the burden placed on the Crown would be virtually
impossible to meet (such as proving sanity)104 Even if the accused only has the burden
of disproving the fact that heshe did not have lawful authority to be in a public work or
on an approach thereto there may not be a rational connection between the proven fact
and the fact to be presumed
The history of threats and violence at previous intergovernmental conferences
demonstrated that the protection of G20 participants was a pressing and substantial
concern However given the broadness of the PWPA every exercise of it raises the
potential for Charter scrutiny
Recommendation
Given the public policy considerations I have raised regarding the PWPA and Charter
concerns that could arise I recommend that the PWPA be repealed after the Province has
considered potential policy and security gaps as a result of its repeal
B Other uses of the Public Works Protection Act
It appears from my consultations with stakeholder groups that if the PWPA is repealed
104 R v Chaulk [1990] 3 SCR 1303 at 1340
44
there are two areas which may require legislation to provide specific peace officer
powers These two areas are court security and the protection of nuclear power facilities
and other power generating infrastructures
1 Court Security
During my decade as Ontariorsquos Attorney General (1975 to 1985) there were three
murders in provincial courthouses as well as many threats to members of courthouse staff
and others As violent acts in courthouses can be anticipated courtroom security is often
required
Individuals are compelled to go to court for a variety of reasons such as appearing as an
accused as a witness or for jury duty To provide protection to those who work there or
are compelled to attend an adequate level of court security may require a search without
warrant of each and every individual who seeks to enter a courthouse It is not reasonable
to require prior judicial authorization for each search that takes place
The courts have considered the constitutionality of these provisions of the PWPA in
conjunction with section 137 of the Ontario Police Services Act in the context of court
security
Section 137 of the Ontario Police Services Act imposes a responsibility on municipal
police services boards to secure the premises where court proceedings are conducted and
includes
1 Ensuring the security of judges and of persons taking part in or attending proceedings
45
2 During the hours when judges and members of the public are normally present ensuring the security of the premises
3 Ensuring the secure custody of persons in custody who are on or about the premises including persons taken into custody at proceedings
4 Determining appropriate levels of security for the purposes of paragraphs 1 2 and 3
In R v Campanella105 Ms Campanella was attending the John Sopinka Courthouse in
Hamilton At the courthouse there were signs posted stating that those who entered
would be searched for weapons When Ms Campanellarsquos bag was searched marijuana
was found and she was charged with the possession of marijuana She argued that her s
8 Charter protection against unreasonable search and seizure had been violated and the
marijuana discovered during the search should therefore be excluded as evidence The
trial judge and the summary convictions appeal court rejected the section 8 Charter
argument and the appellant appealed to the Ontario Court of Appeal
The Ontario Court of Appeal agreed that ldquogiven the importance of the government
objective and the context in which these searches take place it is reasonable to authorize
warrantless searches of those entering courthouse facilitiesrdquo106 The Court stated ldquothe
only effective way to diminish the risk in a large courthouse is to subject everyone
without prior security clearance to some kind of inspection I can see no other feasible
means of achieving the aimrdquo107
The Court also pointed out the concern relating to the erosion of the benefits and
105 [2002] OJ No 5104 (SCJ) affrsquod [2005] OJ No 1345 (CA) [ldquoCampanellardquo]106 R v Campanella [2005] OJ No 1345 at para 17 (CA)107 Ibid at para 19
46
protections conferred by s 8 of the Charter108
I am sensitive to the concern that we should not erode the benefits and protections of s 8 by gradually sanctioning ever-greater intrusions into privacy because of unfounded fears We should not lightly accept that searches in public places are justified solely because people have become used to them and expect them However the record in this case establishes the justification for the kinds of searches carried out in this case
Ultimately the appeal was dismissed and s 137 of the Police Services Act and s 3(b) of
the PWPA) were held to comply with s 8 of the Charter109
In its consultations with me the OBA similarly stated that the existing nature of court
security is necessary and is generally ldquowell toleratedrdquo At the same time however it
submits that the security regime should not be ldquoshoehornedrdquo into the PWPA regime and
that it would be preferable to provide a legislative framework tailored for the specific
security requirements While the PWPA has been relied upon as support for the exercise
of powers by the police in providing court security the OBA submits that the PWPArsquos
ldquosingle security schemerdquo which declares something a ldquopublic workrdquo is an ldquoawkward
blunt instrument in a world where more specialized tools are necessaryrdquo When
warrantless searches are being done on a routine basis it is advisable to have specific
legislation providing peace officers with such power
Recommendation
Court security legislation is currently in place in many jurisdictions across Canada and
contain provisions that permit warrantless searches of persons wanting to access a
108 Ibid at para 25109 The Court in R v SS [2005] OJ No 5002 (SCJ) agreed with the findings and rationale of the Court of Appeal in Campanella
47
courthouse The constitutional validity of such legislation in Manitoba was upheld by that
provincersquos highest court110
Given the ongoing need for warrantless searches at courthouses the Province of Ontario
should consider specific court security legislation in Ontario to support the security
measures in our courthouses if the PWPA is to be repealed taking into consideration the
responsibilities of the municipal police services boards provided in s 137 of the Police
Services Act This legislation should only be passed after proper notice consultation and
legislative debate
2 Power Generating Infrastructures
It is clear from the submissions that I received from representatives of OPG and the
Canadian Nuclear Safety Commission (ldquoCNSCrdquo) that the PWPA currently plays a role in
providing security officers with the powers to secure power generating infrastructures
including the ability to carry firearms and the ability to stop and require identification
from those in proximity to those nuclear plants
Security is of the utmost importance in protecting a nuclear power plant Members of the
public do not need to access a nuclear or similar power facility unless employed at the
facility or carrying out work for the facility111
The security of areas within nuclear power plants is governed by the Nuclear Security
110 R v Lindsay [2004] MJ No 380 (CA) 111 Though the discussion focuses on nuclear power plants I have been informed that other power generating infrastructures use the PWPA to designate their security officers as guards As a result if the PWPA is repealed it will be necessary to broaden the consultations in relation to these other power generating infrastructures
48
Regulations112 Every nuclear power plant must be located within a ldquoprotected areardquo113
This protected area is the area within a fenced perimeter which is alarmed and
continually patrolled This area must be equipped with devices that employ two
independent systems to detect intrusion into the area114 The Nuclear Security
Regulations also provide detailed specifications for the barrier which must enclose the
protected area115 In addition licensees must ldquoidentify all vital areas and implement
physical protection measures ndash including access control and measures designed to delay
unauthorized accessrdquo116
The Nuclear Security Regulations also provide detailed provisions regarding entry into
protected areas No person can ldquoenter a protected area without physical proof of the
recorded authorization of the licenseerdquo117 Further to this on entry into a protected area
ldquothat personrsquos identity shall be verified by two separate personnel identity verification
systems one of which is an access card reader and the other of which is a biometric
personnel identity verification devicerdquo118 Licensees must also ldquoensure that vehicle
portals are used for the entry and exit of land vehicles into and from a protected areardquo119
Physical protection measures are also required to reduce the chance of a forced land
vehicle entry into a protected area120
The power to conduct searches upon entry to a protected area is also provided by the
112 SOR2000-209 113 Ibid s 8114 Ibid s 11(a)(i)115 Ibid s 9116 Ibid s 141117 Ibid s 17(1)118 Ibid s 171119 Ibid s 91(1)120 Ibid s 91(4)
49
Nuclear Security Regulations Signs must be posted that are visible to people about to
enter the protected area stating that they must allow a nuclear security officer (ldquoNSOrdquo) to
ldquosearch them and everything in their possession including any land vehicle for weapons
and explosive substancesrdquo121 In addition when leaving the protected area people must
allow NSOs to ldquosearch them and everything in their possession including any land
vehicle for Category I II or III nuclear materialrdquo122 People are not permitted to enter or
leave a protected area unless these searches are carried out123 The Nuclear Security
Regulations provide for the method of search including ldquoa hand-held scanner a walk-
through scanner or any similar devicerdquo124 In addition if an NSO determines it
necessary a frisk search can be carried out by a person of the same sex125
I have been informed that the area outside of but adjacent to the ldquoprotected areardquo is
referred to as the ldquocontrolled areardquo This area includes roadways and waterways within
the nuclear facilityrsquos property boundaries adjacent to or in close proximity to the nuclear
power plantrsquos protected area and may be generally accessible to the public
As a result of the September 11 2001 terrorist attacks the Nuclear Security Regulations
were amended to require that high security nuclear facilities maintain an on-site armed
Nuclear Response Force (ldquoNRFrdquo)126 The NRF is composed of specialized NSOs
Section 32 of the Nuclear Security Regulations requires the NRF to be capable of making
an effective intervention taking into account the threat
121 Ibid s 27(1)(a)122 Ibid s 27(1)(b)123 Ibid s 27(2)124 Ibid s 27(5)(a)125 Ibid s 27(5)(b)126 Ibid s 32
50
Members of the NRF are mandated by the Nuclear Security Regulations to be ldquotrained in
the use of firearms authorized to carry firearms in Canada and qualified to use themrdquo127
However to satisfy this requirement the NRF resorts to the PWPA since the federal
regulations do not authorize the NRF to carry firearms without a licence However
under s 2(1) of the PWPA NSOs are designated as ldquoguardsrdquo with the powers of a peace
officer most significantly to carry and use firearms without having to be licensed128
Such a designation also enables the OPG to acquire and dispose of firearms
In the consultations I had with the OPG and the CNSC they advised me that NSOs
receive training equivalent to Canadian police standards and that NRF officers receive
training equivalent to federal and provincial police tactical team requirements
Another aspect of the PWPA used to secure nuclear power plants relates to powers
exercised by NSOs in ldquocontrolled areasrdquo The federal regulations do not provide the
NSOs with any power to demand identification within this area However pursuant to
the PWPA as appointed ldquoguardsrdquo the NSOs have the power to demand identity
verification in the controlled area They also have the authority to arrest anyone who
obstructs NSOs in the performance of their duties under the PWPA
In addition to using the PWPA to secure the controlled areas I have been advised by the
OPG that NSOs use powers pursuant to the PWPA to secure areas within 100 metres of a
nuclear facilityrsquos property line immediately adjacent to the controlled area These powers
are exercised under the broad language of the PWPA regarding ldquoapproaches to public
127 Ibid s 1 (on-site nuclear response force definition)128 Section 11707 of the Criminal Code exempts peace officers from licensing requirements for possessing firearms and other prohibited and restricted weapons
51
worksrdquo This is an illustration of the problem with the vagueness of this language in the
legislation As these powers are exercised on public land they could be challenged as a
potential infringement on individual rights and freedoms However I have been advised
that there have been no such incidents to date The need to ensure the security of these
facilities must be taken into the balance
NSOs must be able to monitor and control access to the controlled areas and areas close
to a nuclear power plantrsquos property line This provides for a more secure perimeter
around these facilities They need authority to challenge individuals acting in a suspicious
manner or conducting surveillance of nuclear facilities The OPG has informed me that
areas outside a nuclear facilityrsquos property line immediately adjacent to the controlled
area are still close enough to take advantage of the short distance to conduct intelligence
using high-powered surveillance equipment These nuclear power plants are not located
on isolated islands and are therefore vulnerable Both the Pickering Nuclear Generating
Station and the Darlington Nuclear Generating Station operate within major urban areas
being 30 km and 60 km east of downtown Toronto respectively I am advised that
previous events such as ldquoThe Toronto 18rdquo129 have shown that those intent on targeting
vital infrastructure such as power generating facilities often use reconnaissance and
intelligence gathering as precursor tactics
Recommendation
If the PWPA is to be repealed it is imperative that those who secure our nuclear and
power generating facilities be given the requisite specific legislative powers to do so
129 See for example ldquoLast 2 Toronto 18 accused found guiltyrdquo CBC News (23 June 2010) online cbcca lthttpwwwcbccanewscanadatorontostory20100623toronto-18-verdicthtmlgt
52
The source for these powers should be set out in the federal Nuclear Security
Regulations However if this is not a desired option the Government of Ontario must
consider specific legislation setting out the specific powers required to properly secure
these facilities and the specific location in which these powers can be exercised Such
legislation should not be passed without proper notice consultation and legislative
debate
53
SECTION 6 CONCLUSION
The PWPA was enacted in 1939 to support the war effort At the time the protection of
Ontariorsquos hydroelectric facilities from sabotage was of particular concern Since then the
PWPA has been used to provide the legal foundation for the powers exercised by the
police in providing court security and even more recently by the OPG in securing
nuclear power facilities In June 2010 the PWPA was used to provide powers to secure
intergovernmental conferences The vagueness of the PWPA permits it to be used in
situations when it is arguably not necessary and potentially abusive In my view the
PWPA has been used for purposes beyond its original intent
The time for the PWPA seems to have passed If the Government of Ontario enacts as I
have suggested specific legislation to provide for courthouse security and power
generating infrastructure security it would appear that there is no longer a need for the
PWPA I am also mindful of the existence of counter-terrorism and emergencies
legislation to deal with these situations as they arise
ldquoIn determining the boundaries of police powers caution is required to ensure the proper
balance between preventing excessive intrusions on an individualrsquos liberty and privacy
and enabling the police to do what is reasonably necessary to perform their duties in
protecting the publicrdquo130 The overly broad and vague language of the PWPA does not
strike this required balance with individual rights and freedoms
The late Justice Jackson of the United States Supreme Court stated that every
emergency power once conferred ldquolies about like a loaded weapon ready for the hand of
130 R v Clayton [2007] 2 SCR 725 at 742
54
any authority that can bring forward a plausible claim of an urgent needrdquo131 The need to
protect the public must be balanced with the requirement to preserve fundamental rights
and freedoms
Yet at the same time ldquoCanadians are entitled to demand the best public order policing
possible from their governmentrdquo132 There is no question that we live in a different world
post 911 We live in difficult times with constant threats both domestically and from
abroad The police clearly need to be given adequate powers to carry out their duties
The police use their expertise on a daily basis to assess the powers they require In
instances when they take action that exceeds their powers their actions are examined by
various mandated bodies This process I believe results in the proper balance between
police powers and individual rights and freedoms Therefore any legislation that purports
to grant special police powers must be specific and direct and developed in consultation
with stakeholders and tested through thorough debate in our transparent democratic
system
131 Korematsu v United States 323 US 214 (1944)132 Supra note 26 p 8
55
In addressing the first part of the Waterfield test the Court referenced provisions of the
Alberta Police Act and the Criminal Code and concluded that the conduct of the peace
officers fell within the general scope of the duties imposed upon them for example
preservation of the peace and prevention of crime39
According to the principles which for the preservation of peace and prevention of crime underlie the provisions of s 30 amongst others of the Criminal Code these official authorities were not only entitled but in duty bound as peace officers to prevent a renewal of a like criminal assault on the person of Premier Kosygin during his official visit in Canada In this respect they had a specific and binding obligation to take proper and reasonable steps The restriction of the right of free access of the public to public streets at the strategic point mentioned above was one of the steps--not an unusual one--which police authorities considered and adopted as necessary for the attainment of the purpose aforesaid In my opinion such conduct of the police was clearly falling within the general scope of the duties imposed upon them
In analyzing the second step of the Waterfield test the Court concluded that there was no
evidence indicating the police officers resorted to an unjustifiable use of the powers
associated with the duties imposed on them
The Court in Knowlton recognized broad police powers to cordon off areas as part of the
security arrangements involving internationally protected persons In addition the Court
found that the warrantless arrest in that case was not an unjustifiable or unreasonable use
of powers associated with the police duties to preserve the peace order public safety and
to enforce the law and prevent crime Finally the Court found that peace officers were
duty bound ldquoto prevent a renewal of a like criminal assault on the person of Premier
Kosygin during his official visit in Canadardquo40 Furthermore it stated the closing of public
39 Ibid 40 Ibid at 447
25
streets ldquowas one of the steps -- not an unusual one -- which police authorities considered
and adopted as necessaryrdquo41
The Knowlton decision clearly acknowledged that the police had the duty and authority to
establish and enforce a secured area to protect a foreign dignitary In order to carry out
these duties the police may do what is reasonably necessary in light of the totality of the
circumstances
Though Knowlton was decided prior to the enactment of the Canadian Charter of Rights
and Freedoms (the ldquoCharterrdquo) this does not in my view affect the clear statement by the
Supreme Court of Canada regarding the duty of the police under the common law and the
Alberta Police Act to provide this security While the facts of Knowlton were quite
compelling in relation to the obvious need to provide adequate security for Premier
Kosygin the decision is equally important authority regarding the general responsibilities
of the police at common law and statute in relation to the preservation of the peace
B Other Statutory Powers
1 Criminal Code
Some specific powers are provided to peace officers pursuant to the Criminal Code42
Section 31 gives peace officers the power to arrest an individual for breach of the peace
Peace officers can arrest those committing the breach of the peace or those who on
reasonable grounds heshe believe are about to join in or renew the breach of the peace
Peace officers also have powers at their disposal under ss 63-69 of the Criminal Code to
deal with the offences of unlawful assembly and riots
41 Ibid at 447-448 42 RSC 1985 c C-46
26
2 Trespass to Property Act
The Ontario Trespass to Property Act43 is a potential source of police power to arrest
without warrant those who are unlawfully on certain premises or who were recently
unlawfully on the premises and refuse to give their name and address44 This statute
deals with illegal entry into both private and public property by creating the offence of
trespass for those who without the express permission of the occupier enter on to
premises or engage in an activity on the premises when it is prohibited by the statute45
Though this statute is primarily used by private property owners to keep unwanted people
off of their property it has also been invoked by the Speaker of the House46 and by the
City of Toronto47 It must be noted however that using the Trespass to Property Act in
relation to removing individuals from ldquopublicrdquo places may raise Charter issues48
3 Foreign Missions and International Organizations Act
The RCMP as peace officers have the general duty to preserve the peace and prevent
crime and offences as set out in s 18 of the Royal Canadian Mounted Police Act49
Additional duties found in s 17 of the Royal Canadian Mounted Police Regulations
198850 include the protection of ldquointernationally protected personsrdquo as defined in s 2 of
the Criminal Code Internationally protected persons include heads of state and their
43 RSO 1990 c T2144 Ibid ss 9(1) 1045 Ibid s 2(1)46R v Behrens [2004] OJ No 5135 (CJ) The Court held that the issue of the trespass notices fell under the Speakerrsquos parliamentary privilege and were not reviewable even on the basis of a Charter argument47R v Semple [2004] OJ No 2137 (CJ)48 In R v Semple the defendants were charged under the Ontario Trespass to Property Act for entering the grounds of Toronto City Hall after being banned from doing so In the end the Court held that the defendantsrsquo peaceful entry onto the grounds was an expression as per s 2(b) of the Charter Torontorsquos notice under the Act infringed on this freedom and in these circumstances it could not be justified under s 1 of the Charter 49 RSC 1985 c R-1050 SOR88-361
27
family members The RCMPrsquos duty to protect internationally protected persons is also
found in s 6(1) of the Security Offences Act51
In addition Canada is a signatory of the United Nations Convention on the Prevention
and Punishment of Crimes against Internationally Protected Persons including
Diplomatic Agents52 This Convention provides that the Government of Canada must
protect visiting heads of state or government foreign ministers representatives or
officials of a state or any official or other agent of an international organization of an
intergovernmental character and the family members that accompany him or her The
RCMP has the responsibility to carry out these security measures
Pursuant to s 101(1) of the FMIOA ldquoThe Royal Canadian Mounted Police has the
primary responsibility to ensure the security for the proper functioning of any
intergovernmental conference in which two or more states participate that is attended by
persons granted privileges and immunities under this Act and to which an order made or
continued under this Act appliesrdquo
The powers to carry out this mandate are found in s 101(2) of the FMIOA ldquothe Royal
Canadian Mounted Police may take appropriate measures including controlling limiting
or prohibiting access to any area to the extent and in a manner that is reasonable in the
circumstancesrdquo It is noteworthy that the FMIOA has legislated the same powers
provided to the police under common law and statute
In order to trigger the RCMP powers described in s 101 the Governor in Council on the
51 RSC 1985 c S-752 UNGA Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons including Diplomatic Agents 20 February 1977 UN Doc I-15410
28
recommendation of the Minister of Foreign Affairs and pursuant to s 5 of the FMIOA
made the G8 Summit Privileges and Immunities Order 201053 on December 10 2009
This order was repealed and a subsequent order54 was made on January 13 2010 A
similar order55 for the G20 Summit was made on March 11 201056
Therefore during the G20 the RCMP had the specific statutory power to limit or
prohibit access to any area and to any extent as long as the measures were appropriate
and done in a manner that was reasonable in the circumstances ldquoThe RCMP may secure
the perimeter of the security zone on land with fencing and restrict access to this zone
through the use of checkpoints and other measuresrdquo57
Though not invoked during the G20 s 101(4) of the FMIOA provides that arrangements
can be entered into with a province concerning the responsibilities of members of the
RCMP and members of the provincial and municipal police forces with respect to
ensuring the security for the proper functioning of an intergovernmental conference No
information was provided to me as to why such an arrangement was not entered into for
the G20
These intergovernmental security provisions of the FMIOA were enacted just prior to the
G8 being held in Kananaskis Alberta in 2002 In light of violent protests at international
events and the 911 terrorist attacks in the United States the Federal Government
53 SOR2009-33654 SOR2010-1355 SOR2010-6256 Supra note 17 ldquoUpon such an Order being made the RCMP in co-operation and collaboration with other police forces becomes impressed with the primary responsibility of ensuring not only the protection of the IPPs but also ensuring lsquosecurity for the proper functioningrsquo of the intergovernmental conference To that end the FMIOA provides that the lsquoappropriate measures including controlling limiting or prohibiting access to any area to the extent and in a manner that is reasonable in the circumstancesrsquo may be takenrdquo57 Ibid
29
considered it timely ldquoto clarify in statute the present common law authority for police to
provide security and protection for high profile international eventsrdquo58 At such events it
was intended that ldquothe RCMP is the lead to make sure that security is providedrdquo59
Given that it was clearly the intention of the Federal Government to have the RCMP as
the lead police force at these international events consideration should be given to
expand the use of the FMIOA to cover all large scale international events such as the
Olympics the Pan American Games and international trade fairs as these events are
routinely attended by heads of state and senior government officials Most recently
Vancouver held the 2010 Olympic and Paralympic Winter Games60 Though federal and
municipal legislation were passed to assist in securing the Games expansion and
application of the FMIOA would have been a better approach The RCMP as the national
police force ought to be in charge pursuant to their authority under the FMIOA
4 Emergency Legislation
Through my consultations with the parties listed in Appendix 2 I heard that while we are
not in a time of war as in 1939 when the PWPA was enacted we live in an age of
international and local terrorism threats Our democratic society must be vigilant in
58 Canada House of Commons Debates 37th Parl 1st Sess No 93 (5 October 2001) at 100059 Canada House of Commons Standing Committee on Public Safety and National Security 40th Parl 3rd
Sess Evidence (25 October 2010)60 In anticipation of this event the Governor General in Council on the recommendation of the Minister of Transport pursuant to the Aeronautics Act (RSC 1985 c A-2) and the Canadian Air Transport Security Authority Act (SC 2002 c 9 s 2) passed the Vancouver 2010 Aviation Security Regulations (SOR2009-298) The purpose of the regulations was to enhance aviation security during the Games The Regulation provided for extra security and extra authorized means to conduct screenings In addition the Vancouver City Council passed the very lengthy By-law No 9962 known as the ldquoVancouver 2010 Olympic and Paralympic Winter Games By-Lawrdquo Specific security measures to be employed at a city live site (described thoroughly in a Schedule to the By-Law) that were enabled by this By-Law included The installation and monitoring of airport style and other security measures including magnetometers and X-ray machines the installation and monitoring of closed circuit television cameras the searching of any person who wished to enter on to a city live site and any bag luggage or other container carried by such person and the prohibiting of access to or removal from a city live site any person who refused to submit to a search
30
maintaining a proper level of security while recognizing that democratic values and
security issues can conflict where public order is at issue It is important to highlight that
provincial legislation exists dealing with both terrorism threats and emergency situations
I have been informed that federal and provincial counter-terrorism plans exist that
address preventing and responding to acts of terrorism
The Police Services Act regulations mandate police forces to establish procedures
consistent with federal and provincial counter-terrorism plans61 and to have policies with
respect to counter-terrorism62 In addition the Emergency Management and Civil
Protection Act allows for orders to be made in situations specifically designated an
ldquoemergencyrdquo63 by the Lieutenant Governor in Council or the Premier that regulate or
prohibit travel and movement to from or within any specified area64 Therefore the
PWPA is not needed to deal with these emergency situations as specific more recent
emergency legislation is in place for that very purpose
C Gaps in Canadian Police Powers
The Ministry of Community Safety and Correctional Services provided me with an
interesting article published in 2010 entitled ldquoThe Gap in Canadian Police Powers
61 Adequacy and Effectiveness of Police Services O Reg 399 s 2862 Ibid s 2963 Section 1 of the Emergency Management and Civil Protection Act defines an ldquoemergencyrdquo as ldquoemergencyrdquo means a situation or an impending situation that constitutes a danger of major proportions that could result in serious harm to persons or substantial damage to property and that is caused by the forces of nature a disease or other health risk an accident or an act whether intentional or otherwise (ldquosituation drsquourgencerdquo)64 RSO 1990 c E9 s 702(4)
31
Canada needs lsquoPublic Order Policingrsquo Legislationrdquo and co-authored by Wesley Pue and
Robert Diab65
This article was prompted by the debate over the cost nature and extent of security to be
employed at the Vancouver 2010 Winter Olympics The authors criticized the fact that
policing authorities in Canada ldquolack specific statutory authorization to take measures
commonly thought necessary to their missionrdquo66 These measures included security
fences in public areas designated protest areas restricted access to public space police
surveillance and searches without cause
The authors recognize that such powers may be necessary but note that ldquono legislature
has ever expressly conferred such powers on policing authorities outside the context of
international intergovernmental conferences Nor does the common law accord such
powers to state officials on its ownrdquo67 I respectfully disagree with this latter statement
It is my view the police have powers pursuant to the common law and statute as I have
discussed in the preceding section
The authors referred to R v Knowlton68 which I have previously discussed While the
authors give Knowlton a very narrow interpretation stating that ldquoits binding principle is a
good deal narrower than the words taken out of context might suggestrdquo69 I however am
of the view that the decision supports the proposition that police have a broad range of
65 Wesley Pue and Robert Diab ldquoThe Gap In Canadian Police Powers Canada Needs lsquoPublic Order Policingrsquo Legislationrdquo (2010) 28 Windsor Rev Legal Soc Issues 87 Wesley Pue is a professor of legal history at the University of British Columbia and Robert Diab is a PhD candidate at the UBC Faculty of Law66 Ibid p 8867 Ibid68 Supra note 3469 Supra note 65 p 92
32
responsibilities with deep historical roots in the common law and codified in statute a
position shared by the Federal Government when it introduced amendments to the
FMIOA The actions of the police in Knowlton were necessarily incidental to their
common law police duties and powers
The authors conclude that this ldquoauthority of police to create zones of exclusion either as
an incident of the general and ancient duties of constableshelliphas never been established in
the courtsrdquo70 I am of the view however that the role of the police in establishing
security zones relating to a crime a serious accident or other emergency is a routine and
well-accepted use of police powers pursuant to their common law and statutory duties I
am not suggesting that this common law authority permits the police to establish security
zones ldquofor the proper functioning of any intergovernmental conference in which two or
more states participaterdquo71 larger than necessary to fulfill their purpose The FMIOA as
amended in 2002 provides the RCMP with ldquoprimary responsibility to ensure the security
for the proper functioning of the intergovernmental conferencerdquo72 It is interesting
however that when the Federal Government was enacting this specific authority the
legislative debates indicated that the government was merely clarifying ldquoin statute the
present common law authority for police to provide security and protection for high
profile international eventsrdquo73
Security perimeters are routinely erected by police in the context of the commission of a
crime motor vehicle and other accidents as well as the Santa Claus parade and other
70 Ibid p 9671 Supra note 8 s 101(1)72 Ibid73 Supra note 58
33
parades It would in my view be quite impractical and unnecessary to legislate an
extensive code of police powers given their common law and statutory responsibilities to
generally maintain public order It is not advisable in my opinion to be prescriptive in
any way regarding what actions the police can take since they must assess what the
situation warrants while at the same time considering individual rights and freedoms
The details of any police response to an emergency must be tailored to the exigencies
related to the situation
The police clearly have common law and statutory authority to conduct warrantless
searches in specific situations (ldquoin exigent circumstancesrdquo)74 However when
warrantless searches must be carried out on a regular routine basis the police are acting
more like full time security guards and there should be specific statutory authority
provided to give such powers
I certainly accept the general proposition the authors assert that the mobility rights of
citizens should not be unreasonably or unfairly dealt with However one only need be
aware of the massive amount of construction taking place on the streets of Toronto as this
Report is being written to appreciate that it is not always reasonable to expect that ldquothe
rights of businesses homeowners and ordinary citizens to go about their routine
activities without interruptionrdquo75 will go unhindered While generally desirable it cannot
be legally guaranteed At the same time the authors do concede that ldquoimportant as they
74 Supra note 42 s 4871175 Supra note 65 p 89
34
are the rights of assembly movement and protest are not unqualified They can ndash and
should ndash be balanced against other important public needsrdquo76
In my view public policing at times requires innovation as it often benefits from
creative problem solving If police abuse their common law powers related to ldquopublic
order policingrdquo they are accountable to a multiplicity of authorities and the rule of law
most particularly the Charter The legal rights outlined in the Charter such as ldquothe
principles of fundamental justicerdquo77 security ldquoagainst unreasonable search and seizurerdquo78
and ldquothe right not to be arbitrarily detained or imprisonedrdquo79 are described very
generally However they were chosen deliberately as it was recognized that in each case
there is an inherent tension between imposing security measures and fundamental rights
and freedoms Determining which is paramount will be based on the facts of each case
76 Ibid p 9177 Canadian Charter of Rights and Freedoms s 7 Part I of the Constitution Act 1982 being Schedule B to the Canada Act 1982 (UK) 1982 c 1178 Ibid s 879 Ibid s 9
35
SECTION 5 LEGAL ANALYSIS OF THE PUBLIC WORKS PROTECTION ACT
A Legal Analysis of the Legislation
Many stakeholders have questioned the constitutional validity of the PWPA and O Reg
23310 The Ontario Ombudsman seriously questioned whether O Reg 23310 could
pass ldquoconstitutional musterrdquo80 The CCLA suggested that the broad police powers
granted under the PWPA were inconsistent with the Charter81
To the same effect were comments made by Premier Dalton McGuinty who described
the PWPA as ldquoan archaic law that was used to undermine Torontoniansrsquo civil rights
during the G20rdquo82 He elaborated83
The issue is whether itrsquos appropriate given our present-day values and given an old law which I am confident doesnrsquot strike the balance that you and I would want today in terms of public safety and individual freedom of expressionhellipWhen you start talking about civil rights individual freedoms yoursquore talking about those things that in fact define us as a free and democratic societyhellipItrsquos something that is real and meaningful and important to all of us
The Terms of Reference for this Review do not require that I conduct a constitutional
analysis of the PWPA I have however been asked to consider areas for reform and if
appropriate make specific recommendations for amendment or repeal This does require
that I therefore consider whether the legislation may be vulnerable to constitutional
challenge
Section 2(b) of the Charter guarantees everyone the fundamental freedom of expression
The definition of ldquoexpressionrdquo has been interpreted broadly ldquoActivity is expressive if it
80 Supra note 32 at para 23381 Supra note 26 p 982 Robert Benzie and Rob Ferguson ldquoMcGuinty shifts focus to fixing G20 lawrdquo Toronto Star (10 December 2010) online thestarcom lthttpwwwthestarcomnewscanadaarticle905436--mcguinty-shifts-focus-to-fixing-g20-lawgt 83 Ibid
36
attempts to convey meaningrdquo84 While freedom of expression is not absolute there is
very little that is not considered expression However expression that advocates violence
is not protected under s 2(b)85
The Supreme Court of Canada in Committee for the Commonwealth of Canada v
Canada held that s 2(b) ldquodoes not encompass the right to use any and all government
property for purposes of disseminating onersquos views on public matters but I have no doubt
that it does include the right to use for that purpose streets and parks which are dedicated
to the use of the public subject no doubt to reasonable regulation to ensure their
continued use for the purposes to which they are dedicatedrdquo86 It seems clear that
protesting in public streets is a form of expression protected by s 2(b) Protesting at an
intergovernmental conference is clearly expressive in nature
In challenges alleging that a statute contravenes s 2(b) of the Charter a court would
examine whether the purpose or effect of a law contravenes section 2(b)87 There is no
reason to suggest that the purpose of the PWPA was to infringe the freedom of
expression The purpose of the PWPA is to protect important public infrastructures A
court would then have to consider whether the effect of the PWPA may have resulted in
an infringement of freedom of expression
O Reg 23310 defined significant portions of downtown Toronto as a ldquopublic workrdquo
Section 3(c) of the PWPA allows peace officers to refuse entry into public works which
therefore limits the areas in which protesters could express themselves By creating the
84 Irwin Toy Ltd v Queacutebec (Attorney General) [1989] 1 SCR 927 at 96885 Ibid at 97086 [1991] 1 SCR 139 at 165-16687 Peter Hogg Constitutional Law of Canada loose-leaf (consulted on 7 January 2011) 5th ed (Toronto Thomson Reuters Canada Limited 2007) at 43-6
37
relatively large security perimeter designated by the regulation individuals may allege
they were not permitted to communicate directly with those they were protesting against
Furthermore individuals could not communicate in public places such as public streets
where the right to freedom of expression has previously been found to exist88
Commissioner Ted Hughes completed an interim report following a public hearing into
the complaints regarding events that took place with respect to the Asia Pacific Economic
Cooperation (APEC) Conference in Vancouver British Columbia in November 1997
Commissioner Hughes recommended that generous opportunity should be afforded to
peaceful protesters to be seen in their protest activities by guests at the event89
Section 7 of the Charter provides that ldquoEveryone has the right to life liberty and security
of the person and the right not to be deprived thereof except in accordance with the
principles of fundamental justicerdquo The PWPA raises issues regarding the liberty and
security of the person in providing for warrantless searches and stopping for
identification Furthermore vague laws offend two fundamental values of our legal
system90 Firstly individuals are not provided with sufficient guidance as to what
behaviour a law prohibits Secondly those in charge of enforcing the law are not
provided with clear guidance as to how to enforce it A vague law can lead to inconsistent
and arbitrary enforcement91
88 Supra note 86 89 Canada Commission for Public Complaints Against the RCMP APEC ndash Commission Interim Report (31 July 2001) at s 3111 (Commissioner Ted Hughes QC) online Commission for Public Complaints Against the RCMP lthttpwwwcpc-cppgccaprrrepphrapecapec-31-engaspxgt90 Supra note 87 at 47-60 91 ldquoA vague provision does not provide an adequate basis for legal debate that is for reaching a conclusion as to its meaning by reasoned analysis applying legal criteria It does not sufficiently delineate any area of risk and thus can provide neither fair notice to the citizen nor a limitation of enforcement discretion Such
38
As described by Professor Hogg92
The requirement that any limit on rights be prescribed by law reflects two values that are basic to constitutionalism or the rule of law First in order to preclude arbitrary and discriminatory action by government officials all official action in derogation of rights must be authorized by law Secondly citizens must have reasonable opportunity to know what is prohibited so that they can act accordingly Both these values are satisfied by a law that fulfils two requirements (1) the law must be adequately accessible to the public and (2) the law must be formulated with sufficient precision to enable people to regulate their conduct by it and to provide guidance to those who apply the law
As I stated earlier the phrase ldquoany approach theretordquo contained in s 3(a) of the PWPA is
potentially vague No criteria are provided to assist in determining when one is on ldquoany
approach theretordquo A phrase such as ldquoany approach theretordquo is subject to many potential
interpretations It is arguable that this language does not provide reasonable guidance for
individuals to obey the law and for the law to be consistently enforced
Section 8 of the Charter provides that ldquoEveryone has the right to be secure against
unreasonable search or seizurerdquo A warrantless search or seizure is only reasonable if the
search was authorized by law the law itself is reasonable and the manner in which the
search carried out was reasonable93 The fact that no reasonable or probable suspicions
are needed to carry out a search pursuant to s 3(b) of the PWPA raises some issues The
only prerequisite to such a search is that the person or vehicle being subjected to a search
is entering or attempting to enter a public work
a provision is not intelligible to use the terminology of previous decisions of this Court and therefore it fails to give sufficient indications that could fuel a legal debaterdquo (R v Nova Scotia Pharmaceutical Society [1992] 2 SCR 606 at 639-640) 92 Supra note 87 at 38-1293 R v Nolet [2010] SCJ No 24 at para 21
39
Whether the PWPArsquos s 3(b) authority to undertake warrantless searches is ldquoreasonablerdquo
depends on the reasonableness of the impact on the subject of the search ldquoThe
individuals reasonable expectation of privacy must of course be balanced against the
public interest in effective law enforcementrdquo94 It is harder to justify a warrantless search
where the reasonable expectation of privacy is higher For example interference with
bodily integrity will raise the standard of reasonableness Conversely in situations where
people expect to have a lower level of privacy the standard to prove reasonableness is
lower
One rightfully has some expectation of privacy when in public but it does not rise to the
level of privacy that one expects in onersquos home The expectation of privacy further
decreases when one attempts to enter a ldquopublic workrdquo especially in the context of a
secured barrier to an intergovernmental conference
Section 9 of the Charter provides that ldquoEveryone has the right not to be arbitrarily
detained or imprisonedrdquo95 Under s 3(a) of the PWPA a person entering or attempting to
enter or approach a public work must provide his or her name and address and state the
purpose for which he or she desires to enter the public work In order for a guard or
peace officer to carry out this duty the guard or peace officer may ldquostoprdquo the person from
further approaching or entering the public work and the person is not permitted under the
statute to decide not to enter By so doing it is arguable the guard or peace officer has
assumed control over the movement of the individual by a demand or direction The
94 R v Rao [1984] OJ No 3180 at para 79 (CA)95 ldquoDetention under s 9hellipof the Charter refers to a suspension of the individualrsquos liberty interest by a significant physical or psychological restraint Psychological detention is established either where the individual has a legal obligation to comply with the restrictive request or demand or a reasonable person would conclude by reason of the state conduct that he or she had no choice but to complyrdquo (R v Grant [2009] SCJ No 32 at para 44)
40
PWPA provides for a significant legal consequence if the demand or direction is not
followed since ldquoEvery person who neglects or refuses to comply with a request or
direction made under this Act by a guard or peace officer and every person found upon a
public work or any approach thereto without lawful authority the proof whereof lies on
him or her is guilty of an offence and on conviction is liable to a fine of not more than
$500 or to imprisonment for a term of not more than two months or to bothrdquo96
Pursuant to s 3(b) of the PWPA a guard or peace officer may search any person entering
or attempting to enter a public work These searches would necessitate the detention of a
person If a guard or peace officer performs such a search he or she has taken control
over the movement of the person by a demand or direction The same serious legal
consequence results from failing to obey this demand or direction as that which results
from failing to obey the demand or direction pursuant to s 3(a) of the PWPA As a
result ldquodetentionsrdquo could occur pursuant to both s 3(a) and s 3(b) of the PWPA
The question that would need to be addressed in any challenge to the PWPA is whether
the detentions permitted by the PWPA are arbitrary in nature The use of the term ldquoany
approach theretordquo is vague and imprecise A person could be deemed to be on ldquoany
approach theretordquo a great distance from the entrance of a public work and their detention
might very well be arbitrary In addition the fact that the guards and peace officers
determine the boundaries of the ldquoapproachesrdquo which cannot be contested seems
arbitrary as well as who they chose to search
96 It should be noted that not all communications with state authorities and police officers will amount to a detention The question is whether a person may reasonably believe that he or she is free to refuse to comply
41
Section 11(d) of the Charter provides that ldquoAny person charged with an offence has the
right to be presumed innocent until proven guilty according to law in a fair and public
hearing by an independent and impartial tribunalrdquo This requires that the Crown have the
burden of proving the guilt of an individual charged with an offence97 Provisions that
place the burden on the accused to disprove on the balance of probabilities an essential
element of an offence raises s 11(d) concerns because convictions would be possible
even if reasonable doubt existed98 The presumption of innocence is not only infringed
upon by a requirement that an accused disprove an essential element of an offence but
also any requirement on an accused to prove a fact on the balance of probabilities to
avoid conviction
Section 5(1) of the PWPA states that ldquoEvery person who neglects or refuses to comply
with a request or direction made under this Act by a guard or peace officer and every
person found upon a public work or any approach thereto without lawful authority the
proof whereof lies on him or her is guilty of an offence and on conviction is liable to a
fine of not more than $500 or to imprisonment for a term of not more than two months or
to bothrdquo For the offence of being found upon a public work or on any approach to a
public work without lawful authority the burden of proof has been ldquoshiftedrdquo from the
Crown to the accused to prove lawful authority
As the foregoing analysis reveals there are certainly many concerns that arise when one
places the PWPA under the lens of the Charter However the rights and freedoms
provided by the Charter are not absolute They are ldquosubject only to such reasonable
97 R v Oakes [1986] 1 SCR 10398 Ibid at 132
42
limits prescribed by law as can be demonstrably justified in a free and democratic
societyrdquo99
In assessing whether a law which infringes the Charter is saved by s 1 a court examines
both the object of the law and the measures taken to achieve that objective A lawrsquos
objective achieves the status of being sufficiently important to justify overriding a
Charter right only when it is consistent with the values of a free and democratic society
The objective must relate to pressing and substantial concerns and not concerns that are
trivial and must be focussed on ldquothe realization of collective goals of fundamental
importancerdquo100 The measures adopted must be ldquorationally connectedrdquo to the objective of
the law101 The measures ldquoshould impair lsquoas little as possiblersquo the right or freedom in
questionrdquo102 Furthermore there must be ldquoa proportionality between the effects of the
measures which are responsible for limiting the Charter right or freedom and the
objective which has been identified as of lsquosufficient importancersquordquo103
An issue that may affect whether the potential limitation on rights and freedoms of the
PWPA and O Reg 23310 were ldquoprescribed by lawrdquo is whether the regulation was
adequately accessible to the public The Ontario Ombudsman the CCLA and the Ontario
Bar Association (ldquoOBArdquo) all noted a lack of notice regarding O Reg 23310 and its
effects prior to and during the G20 While the text of the regulation was available prior
99 Charter s 1 The Superior Court of Quebec decision of Tremblay v Queacutebec (Attorney General) [2001] JQ No 1504 (CS) involved an interim injunction brought by an applicant who was denied entry into the secured perimeter during the 2001 Summit of the Americas in Queacutebec City The applicant sought an injunction to either eliminate the security barrier or to be given a pass to let him within the secured perimeter Even though the Court held that the erection of the security zone violated the applicantrsquos right to freedom of expression and peaceful assembly The court held that the infringement was ldquodemonstrably justified in a free and democratic societyrdquo100 Supra note 97 at 136101 Ibid at 139102 Ibid103 Ibid
43
to the G20 it was only available on a website not frequently accessed by the public
Since O Reg 23310 was not published in The Ontario Gazette until after it was
revoked it may be that the regulation was not adequately accessible to the public
Reverse onus offences have been found to be ldquorationally connectedrdquo when there is plainly
a rational connection between the proven fact and the fact to be presumed Reverse
onuses have also been upheld when the burden placed on the Crown would be virtually
impossible to meet (such as proving sanity)104 Even if the accused only has the burden
of disproving the fact that heshe did not have lawful authority to be in a public work or
on an approach thereto there may not be a rational connection between the proven fact
and the fact to be presumed
The history of threats and violence at previous intergovernmental conferences
demonstrated that the protection of G20 participants was a pressing and substantial
concern However given the broadness of the PWPA every exercise of it raises the
potential for Charter scrutiny
Recommendation
Given the public policy considerations I have raised regarding the PWPA and Charter
concerns that could arise I recommend that the PWPA be repealed after the Province has
considered potential policy and security gaps as a result of its repeal
B Other uses of the Public Works Protection Act
It appears from my consultations with stakeholder groups that if the PWPA is repealed
104 R v Chaulk [1990] 3 SCR 1303 at 1340
44
there are two areas which may require legislation to provide specific peace officer
powers These two areas are court security and the protection of nuclear power facilities
and other power generating infrastructures
1 Court Security
During my decade as Ontariorsquos Attorney General (1975 to 1985) there were three
murders in provincial courthouses as well as many threats to members of courthouse staff
and others As violent acts in courthouses can be anticipated courtroom security is often
required
Individuals are compelled to go to court for a variety of reasons such as appearing as an
accused as a witness or for jury duty To provide protection to those who work there or
are compelled to attend an adequate level of court security may require a search without
warrant of each and every individual who seeks to enter a courthouse It is not reasonable
to require prior judicial authorization for each search that takes place
The courts have considered the constitutionality of these provisions of the PWPA in
conjunction with section 137 of the Ontario Police Services Act in the context of court
security
Section 137 of the Ontario Police Services Act imposes a responsibility on municipal
police services boards to secure the premises where court proceedings are conducted and
includes
1 Ensuring the security of judges and of persons taking part in or attending proceedings
45
2 During the hours when judges and members of the public are normally present ensuring the security of the premises
3 Ensuring the secure custody of persons in custody who are on or about the premises including persons taken into custody at proceedings
4 Determining appropriate levels of security for the purposes of paragraphs 1 2 and 3
In R v Campanella105 Ms Campanella was attending the John Sopinka Courthouse in
Hamilton At the courthouse there were signs posted stating that those who entered
would be searched for weapons When Ms Campanellarsquos bag was searched marijuana
was found and she was charged with the possession of marijuana She argued that her s
8 Charter protection against unreasonable search and seizure had been violated and the
marijuana discovered during the search should therefore be excluded as evidence The
trial judge and the summary convictions appeal court rejected the section 8 Charter
argument and the appellant appealed to the Ontario Court of Appeal
The Ontario Court of Appeal agreed that ldquogiven the importance of the government
objective and the context in which these searches take place it is reasonable to authorize
warrantless searches of those entering courthouse facilitiesrdquo106 The Court stated ldquothe
only effective way to diminish the risk in a large courthouse is to subject everyone
without prior security clearance to some kind of inspection I can see no other feasible
means of achieving the aimrdquo107
The Court also pointed out the concern relating to the erosion of the benefits and
105 [2002] OJ No 5104 (SCJ) affrsquod [2005] OJ No 1345 (CA) [ldquoCampanellardquo]106 R v Campanella [2005] OJ No 1345 at para 17 (CA)107 Ibid at para 19
46
protections conferred by s 8 of the Charter108
I am sensitive to the concern that we should not erode the benefits and protections of s 8 by gradually sanctioning ever-greater intrusions into privacy because of unfounded fears We should not lightly accept that searches in public places are justified solely because people have become used to them and expect them However the record in this case establishes the justification for the kinds of searches carried out in this case
Ultimately the appeal was dismissed and s 137 of the Police Services Act and s 3(b) of
the PWPA) were held to comply with s 8 of the Charter109
In its consultations with me the OBA similarly stated that the existing nature of court
security is necessary and is generally ldquowell toleratedrdquo At the same time however it
submits that the security regime should not be ldquoshoehornedrdquo into the PWPA regime and
that it would be preferable to provide a legislative framework tailored for the specific
security requirements While the PWPA has been relied upon as support for the exercise
of powers by the police in providing court security the OBA submits that the PWPArsquos
ldquosingle security schemerdquo which declares something a ldquopublic workrdquo is an ldquoawkward
blunt instrument in a world where more specialized tools are necessaryrdquo When
warrantless searches are being done on a routine basis it is advisable to have specific
legislation providing peace officers with such power
Recommendation
Court security legislation is currently in place in many jurisdictions across Canada and
contain provisions that permit warrantless searches of persons wanting to access a
108 Ibid at para 25109 The Court in R v SS [2005] OJ No 5002 (SCJ) agreed with the findings and rationale of the Court of Appeal in Campanella
47
courthouse The constitutional validity of such legislation in Manitoba was upheld by that
provincersquos highest court110
Given the ongoing need for warrantless searches at courthouses the Province of Ontario
should consider specific court security legislation in Ontario to support the security
measures in our courthouses if the PWPA is to be repealed taking into consideration the
responsibilities of the municipal police services boards provided in s 137 of the Police
Services Act This legislation should only be passed after proper notice consultation and
legislative debate
2 Power Generating Infrastructures
It is clear from the submissions that I received from representatives of OPG and the
Canadian Nuclear Safety Commission (ldquoCNSCrdquo) that the PWPA currently plays a role in
providing security officers with the powers to secure power generating infrastructures
including the ability to carry firearms and the ability to stop and require identification
from those in proximity to those nuclear plants
Security is of the utmost importance in protecting a nuclear power plant Members of the
public do not need to access a nuclear or similar power facility unless employed at the
facility or carrying out work for the facility111
The security of areas within nuclear power plants is governed by the Nuclear Security
110 R v Lindsay [2004] MJ No 380 (CA) 111 Though the discussion focuses on nuclear power plants I have been informed that other power generating infrastructures use the PWPA to designate their security officers as guards As a result if the PWPA is repealed it will be necessary to broaden the consultations in relation to these other power generating infrastructures
48
Regulations112 Every nuclear power plant must be located within a ldquoprotected areardquo113
This protected area is the area within a fenced perimeter which is alarmed and
continually patrolled This area must be equipped with devices that employ two
independent systems to detect intrusion into the area114 The Nuclear Security
Regulations also provide detailed specifications for the barrier which must enclose the
protected area115 In addition licensees must ldquoidentify all vital areas and implement
physical protection measures ndash including access control and measures designed to delay
unauthorized accessrdquo116
The Nuclear Security Regulations also provide detailed provisions regarding entry into
protected areas No person can ldquoenter a protected area without physical proof of the
recorded authorization of the licenseerdquo117 Further to this on entry into a protected area
ldquothat personrsquos identity shall be verified by two separate personnel identity verification
systems one of which is an access card reader and the other of which is a biometric
personnel identity verification devicerdquo118 Licensees must also ldquoensure that vehicle
portals are used for the entry and exit of land vehicles into and from a protected areardquo119
Physical protection measures are also required to reduce the chance of a forced land
vehicle entry into a protected area120
The power to conduct searches upon entry to a protected area is also provided by the
112 SOR2000-209 113 Ibid s 8114 Ibid s 11(a)(i)115 Ibid s 9116 Ibid s 141117 Ibid s 17(1)118 Ibid s 171119 Ibid s 91(1)120 Ibid s 91(4)
49
Nuclear Security Regulations Signs must be posted that are visible to people about to
enter the protected area stating that they must allow a nuclear security officer (ldquoNSOrdquo) to
ldquosearch them and everything in their possession including any land vehicle for weapons
and explosive substancesrdquo121 In addition when leaving the protected area people must
allow NSOs to ldquosearch them and everything in their possession including any land
vehicle for Category I II or III nuclear materialrdquo122 People are not permitted to enter or
leave a protected area unless these searches are carried out123 The Nuclear Security
Regulations provide for the method of search including ldquoa hand-held scanner a walk-
through scanner or any similar devicerdquo124 In addition if an NSO determines it
necessary a frisk search can be carried out by a person of the same sex125
I have been informed that the area outside of but adjacent to the ldquoprotected areardquo is
referred to as the ldquocontrolled areardquo This area includes roadways and waterways within
the nuclear facilityrsquos property boundaries adjacent to or in close proximity to the nuclear
power plantrsquos protected area and may be generally accessible to the public
As a result of the September 11 2001 terrorist attacks the Nuclear Security Regulations
were amended to require that high security nuclear facilities maintain an on-site armed
Nuclear Response Force (ldquoNRFrdquo)126 The NRF is composed of specialized NSOs
Section 32 of the Nuclear Security Regulations requires the NRF to be capable of making
an effective intervention taking into account the threat
121 Ibid s 27(1)(a)122 Ibid s 27(1)(b)123 Ibid s 27(2)124 Ibid s 27(5)(a)125 Ibid s 27(5)(b)126 Ibid s 32
50
Members of the NRF are mandated by the Nuclear Security Regulations to be ldquotrained in
the use of firearms authorized to carry firearms in Canada and qualified to use themrdquo127
However to satisfy this requirement the NRF resorts to the PWPA since the federal
regulations do not authorize the NRF to carry firearms without a licence However
under s 2(1) of the PWPA NSOs are designated as ldquoguardsrdquo with the powers of a peace
officer most significantly to carry and use firearms without having to be licensed128
Such a designation also enables the OPG to acquire and dispose of firearms
In the consultations I had with the OPG and the CNSC they advised me that NSOs
receive training equivalent to Canadian police standards and that NRF officers receive
training equivalent to federal and provincial police tactical team requirements
Another aspect of the PWPA used to secure nuclear power plants relates to powers
exercised by NSOs in ldquocontrolled areasrdquo The federal regulations do not provide the
NSOs with any power to demand identification within this area However pursuant to
the PWPA as appointed ldquoguardsrdquo the NSOs have the power to demand identity
verification in the controlled area They also have the authority to arrest anyone who
obstructs NSOs in the performance of their duties under the PWPA
In addition to using the PWPA to secure the controlled areas I have been advised by the
OPG that NSOs use powers pursuant to the PWPA to secure areas within 100 metres of a
nuclear facilityrsquos property line immediately adjacent to the controlled area These powers
are exercised under the broad language of the PWPA regarding ldquoapproaches to public
127 Ibid s 1 (on-site nuclear response force definition)128 Section 11707 of the Criminal Code exempts peace officers from licensing requirements for possessing firearms and other prohibited and restricted weapons
51
worksrdquo This is an illustration of the problem with the vagueness of this language in the
legislation As these powers are exercised on public land they could be challenged as a
potential infringement on individual rights and freedoms However I have been advised
that there have been no such incidents to date The need to ensure the security of these
facilities must be taken into the balance
NSOs must be able to monitor and control access to the controlled areas and areas close
to a nuclear power plantrsquos property line This provides for a more secure perimeter
around these facilities They need authority to challenge individuals acting in a suspicious
manner or conducting surveillance of nuclear facilities The OPG has informed me that
areas outside a nuclear facilityrsquos property line immediately adjacent to the controlled
area are still close enough to take advantage of the short distance to conduct intelligence
using high-powered surveillance equipment These nuclear power plants are not located
on isolated islands and are therefore vulnerable Both the Pickering Nuclear Generating
Station and the Darlington Nuclear Generating Station operate within major urban areas
being 30 km and 60 km east of downtown Toronto respectively I am advised that
previous events such as ldquoThe Toronto 18rdquo129 have shown that those intent on targeting
vital infrastructure such as power generating facilities often use reconnaissance and
intelligence gathering as precursor tactics
Recommendation
If the PWPA is to be repealed it is imperative that those who secure our nuclear and
power generating facilities be given the requisite specific legislative powers to do so
129 See for example ldquoLast 2 Toronto 18 accused found guiltyrdquo CBC News (23 June 2010) online cbcca lthttpwwwcbccanewscanadatorontostory20100623toronto-18-verdicthtmlgt
52
The source for these powers should be set out in the federal Nuclear Security
Regulations However if this is not a desired option the Government of Ontario must
consider specific legislation setting out the specific powers required to properly secure
these facilities and the specific location in which these powers can be exercised Such
legislation should not be passed without proper notice consultation and legislative
debate
53
SECTION 6 CONCLUSION
The PWPA was enacted in 1939 to support the war effort At the time the protection of
Ontariorsquos hydroelectric facilities from sabotage was of particular concern Since then the
PWPA has been used to provide the legal foundation for the powers exercised by the
police in providing court security and even more recently by the OPG in securing
nuclear power facilities In June 2010 the PWPA was used to provide powers to secure
intergovernmental conferences The vagueness of the PWPA permits it to be used in
situations when it is arguably not necessary and potentially abusive In my view the
PWPA has been used for purposes beyond its original intent
The time for the PWPA seems to have passed If the Government of Ontario enacts as I
have suggested specific legislation to provide for courthouse security and power
generating infrastructure security it would appear that there is no longer a need for the
PWPA I am also mindful of the existence of counter-terrorism and emergencies
legislation to deal with these situations as they arise
ldquoIn determining the boundaries of police powers caution is required to ensure the proper
balance between preventing excessive intrusions on an individualrsquos liberty and privacy
and enabling the police to do what is reasonably necessary to perform their duties in
protecting the publicrdquo130 The overly broad and vague language of the PWPA does not
strike this required balance with individual rights and freedoms
The late Justice Jackson of the United States Supreme Court stated that every
emergency power once conferred ldquolies about like a loaded weapon ready for the hand of
130 R v Clayton [2007] 2 SCR 725 at 742
54
any authority that can bring forward a plausible claim of an urgent needrdquo131 The need to
protect the public must be balanced with the requirement to preserve fundamental rights
and freedoms
Yet at the same time ldquoCanadians are entitled to demand the best public order policing
possible from their governmentrdquo132 There is no question that we live in a different world
post 911 We live in difficult times with constant threats both domestically and from
abroad The police clearly need to be given adequate powers to carry out their duties
The police use their expertise on a daily basis to assess the powers they require In
instances when they take action that exceeds their powers their actions are examined by
various mandated bodies This process I believe results in the proper balance between
police powers and individual rights and freedoms Therefore any legislation that purports
to grant special police powers must be specific and direct and developed in consultation
with stakeholders and tested through thorough debate in our transparent democratic
system
131 Korematsu v United States 323 US 214 (1944)132 Supra note 26 p 8
55
streets ldquowas one of the steps -- not an unusual one -- which police authorities considered
and adopted as necessaryrdquo41
The Knowlton decision clearly acknowledged that the police had the duty and authority to
establish and enforce a secured area to protect a foreign dignitary In order to carry out
these duties the police may do what is reasonably necessary in light of the totality of the
circumstances
Though Knowlton was decided prior to the enactment of the Canadian Charter of Rights
and Freedoms (the ldquoCharterrdquo) this does not in my view affect the clear statement by the
Supreme Court of Canada regarding the duty of the police under the common law and the
Alberta Police Act to provide this security While the facts of Knowlton were quite
compelling in relation to the obvious need to provide adequate security for Premier
Kosygin the decision is equally important authority regarding the general responsibilities
of the police at common law and statute in relation to the preservation of the peace
B Other Statutory Powers
1 Criminal Code
Some specific powers are provided to peace officers pursuant to the Criminal Code42
Section 31 gives peace officers the power to arrest an individual for breach of the peace
Peace officers can arrest those committing the breach of the peace or those who on
reasonable grounds heshe believe are about to join in or renew the breach of the peace
Peace officers also have powers at their disposal under ss 63-69 of the Criminal Code to
deal with the offences of unlawful assembly and riots
41 Ibid at 447-448 42 RSC 1985 c C-46
26
2 Trespass to Property Act
The Ontario Trespass to Property Act43 is a potential source of police power to arrest
without warrant those who are unlawfully on certain premises or who were recently
unlawfully on the premises and refuse to give their name and address44 This statute
deals with illegal entry into both private and public property by creating the offence of
trespass for those who without the express permission of the occupier enter on to
premises or engage in an activity on the premises when it is prohibited by the statute45
Though this statute is primarily used by private property owners to keep unwanted people
off of their property it has also been invoked by the Speaker of the House46 and by the
City of Toronto47 It must be noted however that using the Trespass to Property Act in
relation to removing individuals from ldquopublicrdquo places may raise Charter issues48
3 Foreign Missions and International Organizations Act
The RCMP as peace officers have the general duty to preserve the peace and prevent
crime and offences as set out in s 18 of the Royal Canadian Mounted Police Act49
Additional duties found in s 17 of the Royal Canadian Mounted Police Regulations
198850 include the protection of ldquointernationally protected personsrdquo as defined in s 2 of
the Criminal Code Internationally protected persons include heads of state and their
43 RSO 1990 c T2144 Ibid ss 9(1) 1045 Ibid s 2(1)46R v Behrens [2004] OJ No 5135 (CJ) The Court held that the issue of the trespass notices fell under the Speakerrsquos parliamentary privilege and were not reviewable even on the basis of a Charter argument47R v Semple [2004] OJ No 2137 (CJ)48 In R v Semple the defendants were charged under the Ontario Trespass to Property Act for entering the grounds of Toronto City Hall after being banned from doing so In the end the Court held that the defendantsrsquo peaceful entry onto the grounds was an expression as per s 2(b) of the Charter Torontorsquos notice under the Act infringed on this freedom and in these circumstances it could not be justified under s 1 of the Charter 49 RSC 1985 c R-1050 SOR88-361
27
family members The RCMPrsquos duty to protect internationally protected persons is also
found in s 6(1) of the Security Offences Act51
In addition Canada is a signatory of the United Nations Convention on the Prevention
and Punishment of Crimes against Internationally Protected Persons including
Diplomatic Agents52 This Convention provides that the Government of Canada must
protect visiting heads of state or government foreign ministers representatives or
officials of a state or any official or other agent of an international organization of an
intergovernmental character and the family members that accompany him or her The
RCMP has the responsibility to carry out these security measures
Pursuant to s 101(1) of the FMIOA ldquoThe Royal Canadian Mounted Police has the
primary responsibility to ensure the security for the proper functioning of any
intergovernmental conference in which two or more states participate that is attended by
persons granted privileges and immunities under this Act and to which an order made or
continued under this Act appliesrdquo
The powers to carry out this mandate are found in s 101(2) of the FMIOA ldquothe Royal
Canadian Mounted Police may take appropriate measures including controlling limiting
or prohibiting access to any area to the extent and in a manner that is reasonable in the
circumstancesrdquo It is noteworthy that the FMIOA has legislated the same powers
provided to the police under common law and statute
In order to trigger the RCMP powers described in s 101 the Governor in Council on the
51 RSC 1985 c S-752 UNGA Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons including Diplomatic Agents 20 February 1977 UN Doc I-15410
28
recommendation of the Minister of Foreign Affairs and pursuant to s 5 of the FMIOA
made the G8 Summit Privileges and Immunities Order 201053 on December 10 2009
This order was repealed and a subsequent order54 was made on January 13 2010 A
similar order55 for the G20 Summit was made on March 11 201056
Therefore during the G20 the RCMP had the specific statutory power to limit or
prohibit access to any area and to any extent as long as the measures were appropriate
and done in a manner that was reasonable in the circumstances ldquoThe RCMP may secure
the perimeter of the security zone on land with fencing and restrict access to this zone
through the use of checkpoints and other measuresrdquo57
Though not invoked during the G20 s 101(4) of the FMIOA provides that arrangements
can be entered into with a province concerning the responsibilities of members of the
RCMP and members of the provincial and municipal police forces with respect to
ensuring the security for the proper functioning of an intergovernmental conference No
information was provided to me as to why such an arrangement was not entered into for
the G20
These intergovernmental security provisions of the FMIOA were enacted just prior to the
G8 being held in Kananaskis Alberta in 2002 In light of violent protests at international
events and the 911 terrorist attacks in the United States the Federal Government
53 SOR2009-33654 SOR2010-1355 SOR2010-6256 Supra note 17 ldquoUpon such an Order being made the RCMP in co-operation and collaboration with other police forces becomes impressed with the primary responsibility of ensuring not only the protection of the IPPs but also ensuring lsquosecurity for the proper functioningrsquo of the intergovernmental conference To that end the FMIOA provides that the lsquoappropriate measures including controlling limiting or prohibiting access to any area to the extent and in a manner that is reasonable in the circumstancesrsquo may be takenrdquo57 Ibid
29
considered it timely ldquoto clarify in statute the present common law authority for police to
provide security and protection for high profile international eventsrdquo58 At such events it
was intended that ldquothe RCMP is the lead to make sure that security is providedrdquo59
Given that it was clearly the intention of the Federal Government to have the RCMP as
the lead police force at these international events consideration should be given to
expand the use of the FMIOA to cover all large scale international events such as the
Olympics the Pan American Games and international trade fairs as these events are
routinely attended by heads of state and senior government officials Most recently
Vancouver held the 2010 Olympic and Paralympic Winter Games60 Though federal and
municipal legislation were passed to assist in securing the Games expansion and
application of the FMIOA would have been a better approach The RCMP as the national
police force ought to be in charge pursuant to their authority under the FMIOA
4 Emergency Legislation
Through my consultations with the parties listed in Appendix 2 I heard that while we are
not in a time of war as in 1939 when the PWPA was enacted we live in an age of
international and local terrorism threats Our democratic society must be vigilant in
58 Canada House of Commons Debates 37th Parl 1st Sess No 93 (5 October 2001) at 100059 Canada House of Commons Standing Committee on Public Safety and National Security 40th Parl 3rd
Sess Evidence (25 October 2010)60 In anticipation of this event the Governor General in Council on the recommendation of the Minister of Transport pursuant to the Aeronautics Act (RSC 1985 c A-2) and the Canadian Air Transport Security Authority Act (SC 2002 c 9 s 2) passed the Vancouver 2010 Aviation Security Regulations (SOR2009-298) The purpose of the regulations was to enhance aviation security during the Games The Regulation provided for extra security and extra authorized means to conduct screenings In addition the Vancouver City Council passed the very lengthy By-law No 9962 known as the ldquoVancouver 2010 Olympic and Paralympic Winter Games By-Lawrdquo Specific security measures to be employed at a city live site (described thoroughly in a Schedule to the By-Law) that were enabled by this By-Law included The installation and monitoring of airport style and other security measures including magnetometers and X-ray machines the installation and monitoring of closed circuit television cameras the searching of any person who wished to enter on to a city live site and any bag luggage or other container carried by such person and the prohibiting of access to or removal from a city live site any person who refused to submit to a search
30
maintaining a proper level of security while recognizing that democratic values and
security issues can conflict where public order is at issue It is important to highlight that
provincial legislation exists dealing with both terrorism threats and emergency situations
I have been informed that federal and provincial counter-terrorism plans exist that
address preventing and responding to acts of terrorism
The Police Services Act regulations mandate police forces to establish procedures
consistent with federal and provincial counter-terrorism plans61 and to have policies with
respect to counter-terrorism62 In addition the Emergency Management and Civil
Protection Act allows for orders to be made in situations specifically designated an
ldquoemergencyrdquo63 by the Lieutenant Governor in Council or the Premier that regulate or
prohibit travel and movement to from or within any specified area64 Therefore the
PWPA is not needed to deal with these emergency situations as specific more recent
emergency legislation is in place for that very purpose
C Gaps in Canadian Police Powers
The Ministry of Community Safety and Correctional Services provided me with an
interesting article published in 2010 entitled ldquoThe Gap in Canadian Police Powers
61 Adequacy and Effectiveness of Police Services O Reg 399 s 2862 Ibid s 2963 Section 1 of the Emergency Management and Civil Protection Act defines an ldquoemergencyrdquo as ldquoemergencyrdquo means a situation or an impending situation that constitutes a danger of major proportions that could result in serious harm to persons or substantial damage to property and that is caused by the forces of nature a disease or other health risk an accident or an act whether intentional or otherwise (ldquosituation drsquourgencerdquo)64 RSO 1990 c E9 s 702(4)
31
Canada needs lsquoPublic Order Policingrsquo Legislationrdquo and co-authored by Wesley Pue and
Robert Diab65
This article was prompted by the debate over the cost nature and extent of security to be
employed at the Vancouver 2010 Winter Olympics The authors criticized the fact that
policing authorities in Canada ldquolack specific statutory authorization to take measures
commonly thought necessary to their missionrdquo66 These measures included security
fences in public areas designated protest areas restricted access to public space police
surveillance and searches without cause
The authors recognize that such powers may be necessary but note that ldquono legislature
has ever expressly conferred such powers on policing authorities outside the context of
international intergovernmental conferences Nor does the common law accord such
powers to state officials on its ownrdquo67 I respectfully disagree with this latter statement
It is my view the police have powers pursuant to the common law and statute as I have
discussed in the preceding section
The authors referred to R v Knowlton68 which I have previously discussed While the
authors give Knowlton a very narrow interpretation stating that ldquoits binding principle is a
good deal narrower than the words taken out of context might suggestrdquo69 I however am
of the view that the decision supports the proposition that police have a broad range of
65 Wesley Pue and Robert Diab ldquoThe Gap In Canadian Police Powers Canada Needs lsquoPublic Order Policingrsquo Legislationrdquo (2010) 28 Windsor Rev Legal Soc Issues 87 Wesley Pue is a professor of legal history at the University of British Columbia and Robert Diab is a PhD candidate at the UBC Faculty of Law66 Ibid p 8867 Ibid68 Supra note 3469 Supra note 65 p 92
32
responsibilities with deep historical roots in the common law and codified in statute a
position shared by the Federal Government when it introduced amendments to the
FMIOA The actions of the police in Knowlton were necessarily incidental to their
common law police duties and powers
The authors conclude that this ldquoauthority of police to create zones of exclusion either as
an incident of the general and ancient duties of constableshelliphas never been established in
the courtsrdquo70 I am of the view however that the role of the police in establishing
security zones relating to a crime a serious accident or other emergency is a routine and
well-accepted use of police powers pursuant to their common law and statutory duties I
am not suggesting that this common law authority permits the police to establish security
zones ldquofor the proper functioning of any intergovernmental conference in which two or
more states participaterdquo71 larger than necessary to fulfill their purpose The FMIOA as
amended in 2002 provides the RCMP with ldquoprimary responsibility to ensure the security
for the proper functioning of the intergovernmental conferencerdquo72 It is interesting
however that when the Federal Government was enacting this specific authority the
legislative debates indicated that the government was merely clarifying ldquoin statute the
present common law authority for police to provide security and protection for high
profile international eventsrdquo73
Security perimeters are routinely erected by police in the context of the commission of a
crime motor vehicle and other accidents as well as the Santa Claus parade and other
70 Ibid p 9671 Supra note 8 s 101(1)72 Ibid73 Supra note 58
33
parades It would in my view be quite impractical and unnecessary to legislate an
extensive code of police powers given their common law and statutory responsibilities to
generally maintain public order It is not advisable in my opinion to be prescriptive in
any way regarding what actions the police can take since they must assess what the
situation warrants while at the same time considering individual rights and freedoms
The details of any police response to an emergency must be tailored to the exigencies
related to the situation
The police clearly have common law and statutory authority to conduct warrantless
searches in specific situations (ldquoin exigent circumstancesrdquo)74 However when
warrantless searches must be carried out on a regular routine basis the police are acting
more like full time security guards and there should be specific statutory authority
provided to give such powers
I certainly accept the general proposition the authors assert that the mobility rights of
citizens should not be unreasonably or unfairly dealt with However one only need be
aware of the massive amount of construction taking place on the streets of Toronto as this
Report is being written to appreciate that it is not always reasonable to expect that ldquothe
rights of businesses homeowners and ordinary citizens to go about their routine
activities without interruptionrdquo75 will go unhindered While generally desirable it cannot
be legally guaranteed At the same time the authors do concede that ldquoimportant as they
74 Supra note 42 s 4871175 Supra note 65 p 89
34
are the rights of assembly movement and protest are not unqualified They can ndash and
should ndash be balanced against other important public needsrdquo76
In my view public policing at times requires innovation as it often benefits from
creative problem solving If police abuse their common law powers related to ldquopublic
order policingrdquo they are accountable to a multiplicity of authorities and the rule of law
most particularly the Charter The legal rights outlined in the Charter such as ldquothe
principles of fundamental justicerdquo77 security ldquoagainst unreasonable search and seizurerdquo78
and ldquothe right not to be arbitrarily detained or imprisonedrdquo79 are described very
generally However they were chosen deliberately as it was recognized that in each case
there is an inherent tension between imposing security measures and fundamental rights
and freedoms Determining which is paramount will be based on the facts of each case
76 Ibid p 9177 Canadian Charter of Rights and Freedoms s 7 Part I of the Constitution Act 1982 being Schedule B to the Canada Act 1982 (UK) 1982 c 1178 Ibid s 879 Ibid s 9
35
SECTION 5 LEGAL ANALYSIS OF THE PUBLIC WORKS PROTECTION ACT
A Legal Analysis of the Legislation
Many stakeholders have questioned the constitutional validity of the PWPA and O Reg
23310 The Ontario Ombudsman seriously questioned whether O Reg 23310 could
pass ldquoconstitutional musterrdquo80 The CCLA suggested that the broad police powers
granted under the PWPA were inconsistent with the Charter81
To the same effect were comments made by Premier Dalton McGuinty who described
the PWPA as ldquoan archaic law that was used to undermine Torontoniansrsquo civil rights
during the G20rdquo82 He elaborated83
The issue is whether itrsquos appropriate given our present-day values and given an old law which I am confident doesnrsquot strike the balance that you and I would want today in terms of public safety and individual freedom of expressionhellipWhen you start talking about civil rights individual freedoms yoursquore talking about those things that in fact define us as a free and democratic societyhellipItrsquos something that is real and meaningful and important to all of us
The Terms of Reference for this Review do not require that I conduct a constitutional
analysis of the PWPA I have however been asked to consider areas for reform and if
appropriate make specific recommendations for amendment or repeal This does require
that I therefore consider whether the legislation may be vulnerable to constitutional
challenge
Section 2(b) of the Charter guarantees everyone the fundamental freedom of expression
The definition of ldquoexpressionrdquo has been interpreted broadly ldquoActivity is expressive if it
80 Supra note 32 at para 23381 Supra note 26 p 982 Robert Benzie and Rob Ferguson ldquoMcGuinty shifts focus to fixing G20 lawrdquo Toronto Star (10 December 2010) online thestarcom lthttpwwwthestarcomnewscanadaarticle905436--mcguinty-shifts-focus-to-fixing-g20-lawgt 83 Ibid
36
attempts to convey meaningrdquo84 While freedom of expression is not absolute there is
very little that is not considered expression However expression that advocates violence
is not protected under s 2(b)85
The Supreme Court of Canada in Committee for the Commonwealth of Canada v
Canada held that s 2(b) ldquodoes not encompass the right to use any and all government
property for purposes of disseminating onersquos views on public matters but I have no doubt
that it does include the right to use for that purpose streets and parks which are dedicated
to the use of the public subject no doubt to reasonable regulation to ensure their
continued use for the purposes to which they are dedicatedrdquo86 It seems clear that
protesting in public streets is a form of expression protected by s 2(b) Protesting at an
intergovernmental conference is clearly expressive in nature
In challenges alleging that a statute contravenes s 2(b) of the Charter a court would
examine whether the purpose or effect of a law contravenes section 2(b)87 There is no
reason to suggest that the purpose of the PWPA was to infringe the freedom of
expression The purpose of the PWPA is to protect important public infrastructures A
court would then have to consider whether the effect of the PWPA may have resulted in
an infringement of freedom of expression
O Reg 23310 defined significant portions of downtown Toronto as a ldquopublic workrdquo
Section 3(c) of the PWPA allows peace officers to refuse entry into public works which
therefore limits the areas in which protesters could express themselves By creating the
84 Irwin Toy Ltd v Queacutebec (Attorney General) [1989] 1 SCR 927 at 96885 Ibid at 97086 [1991] 1 SCR 139 at 165-16687 Peter Hogg Constitutional Law of Canada loose-leaf (consulted on 7 January 2011) 5th ed (Toronto Thomson Reuters Canada Limited 2007) at 43-6
37
relatively large security perimeter designated by the regulation individuals may allege
they were not permitted to communicate directly with those they were protesting against
Furthermore individuals could not communicate in public places such as public streets
where the right to freedom of expression has previously been found to exist88
Commissioner Ted Hughes completed an interim report following a public hearing into
the complaints regarding events that took place with respect to the Asia Pacific Economic
Cooperation (APEC) Conference in Vancouver British Columbia in November 1997
Commissioner Hughes recommended that generous opportunity should be afforded to
peaceful protesters to be seen in their protest activities by guests at the event89
Section 7 of the Charter provides that ldquoEveryone has the right to life liberty and security
of the person and the right not to be deprived thereof except in accordance with the
principles of fundamental justicerdquo The PWPA raises issues regarding the liberty and
security of the person in providing for warrantless searches and stopping for
identification Furthermore vague laws offend two fundamental values of our legal
system90 Firstly individuals are not provided with sufficient guidance as to what
behaviour a law prohibits Secondly those in charge of enforcing the law are not
provided with clear guidance as to how to enforce it A vague law can lead to inconsistent
and arbitrary enforcement91
88 Supra note 86 89 Canada Commission for Public Complaints Against the RCMP APEC ndash Commission Interim Report (31 July 2001) at s 3111 (Commissioner Ted Hughes QC) online Commission for Public Complaints Against the RCMP lthttpwwwcpc-cppgccaprrrepphrapecapec-31-engaspxgt90 Supra note 87 at 47-60 91 ldquoA vague provision does not provide an adequate basis for legal debate that is for reaching a conclusion as to its meaning by reasoned analysis applying legal criteria It does not sufficiently delineate any area of risk and thus can provide neither fair notice to the citizen nor a limitation of enforcement discretion Such
38
As described by Professor Hogg92
The requirement that any limit on rights be prescribed by law reflects two values that are basic to constitutionalism or the rule of law First in order to preclude arbitrary and discriminatory action by government officials all official action in derogation of rights must be authorized by law Secondly citizens must have reasonable opportunity to know what is prohibited so that they can act accordingly Both these values are satisfied by a law that fulfils two requirements (1) the law must be adequately accessible to the public and (2) the law must be formulated with sufficient precision to enable people to regulate their conduct by it and to provide guidance to those who apply the law
As I stated earlier the phrase ldquoany approach theretordquo contained in s 3(a) of the PWPA is
potentially vague No criteria are provided to assist in determining when one is on ldquoany
approach theretordquo A phrase such as ldquoany approach theretordquo is subject to many potential
interpretations It is arguable that this language does not provide reasonable guidance for
individuals to obey the law and for the law to be consistently enforced
Section 8 of the Charter provides that ldquoEveryone has the right to be secure against
unreasonable search or seizurerdquo A warrantless search or seizure is only reasonable if the
search was authorized by law the law itself is reasonable and the manner in which the
search carried out was reasonable93 The fact that no reasonable or probable suspicions
are needed to carry out a search pursuant to s 3(b) of the PWPA raises some issues The
only prerequisite to such a search is that the person or vehicle being subjected to a search
is entering or attempting to enter a public work
a provision is not intelligible to use the terminology of previous decisions of this Court and therefore it fails to give sufficient indications that could fuel a legal debaterdquo (R v Nova Scotia Pharmaceutical Society [1992] 2 SCR 606 at 639-640) 92 Supra note 87 at 38-1293 R v Nolet [2010] SCJ No 24 at para 21
39
Whether the PWPArsquos s 3(b) authority to undertake warrantless searches is ldquoreasonablerdquo
depends on the reasonableness of the impact on the subject of the search ldquoThe
individuals reasonable expectation of privacy must of course be balanced against the
public interest in effective law enforcementrdquo94 It is harder to justify a warrantless search
where the reasonable expectation of privacy is higher For example interference with
bodily integrity will raise the standard of reasonableness Conversely in situations where
people expect to have a lower level of privacy the standard to prove reasonableness is
lower
One rightfully has some expectation of privacy when in public but it does not rise to the
level of privacy that one expects in onersquos home The expectation of privacy further
decreases when one attempts to enter a ldquopublic workrdquo especially in the context of a
secured barrier to an intergovernmental conference
Section 9 of the Charter provides that ldquoEveryone has the right not to be arbitrarily
detained or imprisonedrdquo95 Under s 3(a) of the PWPA a person entering or attempting to
enter or approach a public work must provide his or her name and address and state the
purpose for which he or she desires to enter the public work In order for a guard or
peace officer to carry out this duty the guard or peace officer may ldquostoprdquo the person from
further approaching or entering the public work and the person is not permitted under the
statute to decide not to enter By so doing it is arguable the guard or peace officer has
assumed control over the movement of the individual by a demand or direction The
94 R v Rao [1984] OJ No 3180 at para 79 (CA)95 ldquoDetention under s 9hellipof the Charter refers to a suspension of the individualrsquos liberty interest by a significant physical or psychological restraint Psychological detention is established either where the individual has a legal obligation to comply with the restrictive request or demand or a reasonable person would conclude by reason of the state conduct that he or she had no choice but to complyrdquo (R v Grant [2009] SCJ No 32 at para 44)
40
PWPA provides for a significant legal consequence if the demand or direction is not
followed since ldquoEvery person who neglects or refuses to comply with a request or
direction made under this Act by a guard or peace officer and every person found upon a
public work or any approach thereto without lawful authority the proof whereof lies on
him or her is guilty of an offence and on conviction is liable to a fine of not more than
$500 or to imprisonment for a term of not more than two months or to bothrdquo96
Pursuant to s 3(b) of the PWPA a guard or peace officer may search any person entering
or attempting to enter a public work These searches would necessitate the detention of a
person If a guard or peace officer performs such a search he or she has taken control
over the movement of the person by a demand or direction The same serious legal
consequence results from failing to obey this demand or direction as that which results
from failing to obey the demand or direction pursuant to s 3(a) of the PWPA As a
result ldquodetentionsrdquo could occur pursuant to both s 3(a) and s 3(b) of the PWPA
The question that would need to be addressed in any challenge to the PWPA is whether
the detentions permitted by the PWPA are arbitrary in nature The use of the term ldquoany
approach theretordquo is vague and imprecise A person could be deemed to be on ldquoany
approach theretordquo a great distance from the entrance of a public work and their detention
might very well be arbitrary In addition the fact that the guards and peace officers
determine the boundaries of the ldquoapproachesrdquo which cannot be contested seems
arbitrary as well as who they chose to search
96 It should be noted that not all communications with state authorities and police officers will amount to a detention The question is whether a person may reasonably believe that he or she is free to refuse to comply
41
Section 11(d) of the Charter provides that ldquoAny person charged with an offence has the
right to be presumed innocent until proven guilty according to law in a fair and public
hearing by an independent and impartial tribunalrdquo This requires that the Crown have the
burden of proving the guilt of an individual charged with an offence97 Provisions that
place the burden on the accused to disprove on the balance of probabilities an essential
element of an offence raises s 11(d) concerns because convictions would be possible
even if reasonable doubt existed98 The presumption of innocence is not only infringed
upon by a requirement that an accused disprove an essential element of an offence but
also any requirement on an accused to prove a fact on the balance of probabilities to
avoid conviction
Section 5(1) of the PWPA states that ldquoEvery person who neglects or refuses to comply
with a request or direction made under this Act by a guard or peace officer and every
person found upon a public work or any approach thereto without lawful authority the
proof whereof lies on him or her is guilty of an offence and on conviction is liable to a
fine of not more than $500 or to imprisonment for a term of not more than two months or
to bothrdquo For the offence of being found upon a public work or on any approach to a
public work without lawful authority the burden of proof has been ldquoshiftedrdquo from the
Crown to the accused to prove lawful authority
As the foregoing analysis reveals there are certainly many concerns that arise when one
places the PWPA under the lens of the Charter However the rights and freedoms
provided by the Charter are not absolute They are ldquosubject only to such reasonable
97 R v Oakes [1986] 1 SCR 10398 Ibid at 132
42
limits prescribed by law as can be demonstrably justified in a free and democratic
societyrdquo99
In assessing whether a law which infringes the Charter is saved by s 1 a court examines
both the object of the law and the measures taken to achieve that objective A lawrsquos
objective achieves the status of being sufficiently important to justify overriding a
Charter right only when it is consistent with the values of a free and democratic society
The objective must relate to pressing and substantial concerns and not concerns that are
trivial and must be focussed on ldquothe realization of collective goals of fundamental
importancerdquo100 The measures adopted must be ldquorationally connectedrdquo to the objective of
the law101 The measures ldquoshould impair lsquoas little as possiblersquo the right or freedom in
questionrdquo102 Furthermore there must be ldquoa proportionality between the effects of the
measures which are responsible for limiting the Charter right or freedom and the
objective which has been identified as of lsquosufficient importancersquordquo103
An issue that may affect whether the potential limitation on rights and freedoms of the
PWPA and O Reg 23310 were ldquoprescribed by lawrdquo is whether the regulation was
adequately accessible to the public The Ontario Ombudsman the CCLA and the Ontario
Bar Association (ldquoOBArdquo) all noted a lack of notice regarding O Reg 23310 and its
effects prior to and during the G20 While the text of the regulation was available prior
99 Charter s 1 The Superior Court of Quebec decision of Tremblay v Queacutebec (Attorney General) [2001] JQ No 1504 (CS) involved an interim injunction brought by an applicant who was denied entry into the secured perimeter during the 2001 Summit of the Americas in Queacutebec City The applicant sought an injunction to either eliminate the security barrier or to be given a pass to let him within the secured perimeter Even though the Court held that the erection of the security zone violated the applicantrsquos right to freedom of expression and peaceful assembly The court held that the infringement was ldquodemonstrably justified in a free and democratic societyrdquo100 Supra note 97 at 136101 Ibid at 139102 Ibid103 Ibid
43
to the G20 it was only available on a website not frequently accessed by the public
Since O Reg 23310 was not published in The Ontario Gazette until after it was
revoked it may be that the regulation was not adequately accessible to the public
Reverse onus offences have been found to be ldquorationally connectedrdquo when there is plainly
a rational connection between the proven fact and the fact to be presumed Reverse
onuses have also been upheld when the burden placed on the Crown would be virtually
impossible to meet (such as proving sanity)104 Even if the accused only has the burden
of disproving the fact that heshe did not have lawful authority to be in a public work or
on an approach thereto there may not be a rational connection between the proven fact
and the fact to be presumed
The history of threats and violence at previous intergovernmental conferences
demonstrated that the protection of G20 participants was a pressing and substantial
concern However given the broadness of the PWPA every exercise of it raises the
potential for Charter scrutiny
Recommendation
Given the public policy considerations I have raised regarding the PWPA and Charter
concerns that could arise I recommend that the PWPA be repealed after the Province has
considered potential policy and security gaps as a result of its repeal
B Other uses of the Public Works Protection Act
It appears from my consultations with stakeholder groups that if the PWPA is repealed
104 R v Chaulk [1990] 3 SCR 1303 at 1340
44
there are two areas which may require legislation to provide specific peace officer
powers These two areas are court security and the protection of nuclear power facilities
and other power generating infrastructures
1 Court Security
During my decade as Ontariorsquos Attorney General (1975 to 1985) there were three
murders in provincial courthouses as well as many threats to members of courthouse staff
and others As violent acts in courthouses can be anticipated courtroom security is often
required
Individuals are compelled to go to court for a variety of reasons such as appearing as an
accused as a witness or for jury duty To provide protection to those who work there or
are compelled to attend an adequate level of court security may require a search without
warrant of each and every individual who seeks to enter a courthouse It is not reasonable
to require prior judicial authorization for each search that takes place
The courts have considered the constitutionality of these provisions of the PWPA in
conjunction with section 137 of the Ontario Police Services Act in the context of court
security
Section 137 of the Ontario Police Services Act imposes a responsibility on municipal
police services boards to secure the premises where court proceedings are conducted and
includes
1 Ensuring the security of judges and of persons taking part in or attending proceedings
45
2 During the hours when judges and members of the public are normally present ensuring the security of the premises
3 Ensuring the secure custody of persons in custody who are on or about the premises including persons taken into custody at proceedings
4 Determining appropriate levels of security for the purposes of paragraphs 1 2 and 3
In R v Campanella105 Ms Campanella was attending the John Sopinka Courthouse in
Hamilton At the courthouse there were signs posted stating that those who entered
would be searched for weapons When Ms Campanellarsquos bag was searched marijuana
was found and she was charged with the possession of marijuana She argued that her s
8 Charter protection against unreasonable search and seizure had been violated and the
marijuana discovered during the search should therefore be excluded as evidence The
trial judge and the summary convictions appeal court rejected the section 8 Charter
argument and the appellant appealed to the Ontario Court of Appeal
The Ontario Court of Appeal agreed that ldquogiven the importance of the government
objective and the context in which these searches take place it is reasonable to authorize
warrantless searches of those entering courthouse facilitiesrdquo106 The Court stated ldquothe
only effective way to diminish the risk in a large courthouse is to subject everyone
without prior security clearance to some kind of inspection I can see no other feasible
means of achieving the aimrdquo107
The Court also pointed out the concern relating to the erosion of the benefits and
105 [2002] OJ No 5104 (SCJ) affrsquod [2005] OJ No 1345 (CA) [ldquoCampanellardquo]106 R v Campanella [2005] OJ No 1345 at para 17 (CA)107 Ibid at para 19
46
protections conferred by s 8 of the Charter108
I am sensitive to the concern that we should not erode the benefits and protections of s 8 by gradually sanctioning ever-greater intrusions into privacy because of unfounded fears We should not lightly accept that searches in public places are justified solely because people have become used to them and expect them However the record in this case establishes the justification for the kinds of searches carried out in this case
Ultimately the appeal was dismissed and s 137 of the Police Services Act and s 3(b) of
the PWPA) were held to comply with s 8 of the Charter109
In its consultations with me the OBA similarly stated that the existing nature of court
security is necessary and is generally ldquowell toleratedrdquo At the same time however it
submits that the security regime should not be ldquoshoehornedrdquo into the PWPA regime and
that it would be preferable to provide a legislative framework tailored for the specific
security requirements While the PWPA has been relied upon as support for the exercise
of powers by the police in providing court security the OBA submits that the PWPArsquos
ldquosingle security schemerdquo which declares something a ldquopublic workrdquo is an ldquoawkward
blunt instrument in a world where more specialized tools are necessaryrdquo When
warrantless searches are being done on a routine basis it is advisable to have specific
legislation providing peace officers with such power
Recommendation
Court security legislation is currently in place in many jurisdictions across Canada and
contain provisions that permit warrantless searches of persons wanting to access a
108 Ibid at para 25109 The Court in R v SS [2005] OJ No 5002 (SCJ) agreed with the findings and rationale of the Court of Appeal in Campanella
47
courthouse The constitutional validity of such legislation in Manitoba was upheld by that
provincersquos highest court110
Given the ongoing need for warrantless searches at courthouses the Province of Ontario
should consider specific court security legislation in Ontario to support the security
measures in our courthouses if the PWPA is to be repealed taking into consideration the
responsibilities of the municipal police services boards provided in s 137 of the Police
Services Act This legislation should only be passed after proper notice consultation and
legislative debate
2 Power Generating Infrastructures
It is clear from the submissions that I received from representatives of OPG and the
Canadian Nuclear Safety Commission (ldquoCNSCrdquo) that the PWPA currently plays a role in
providing security officers with the powers to secure power generating infrastructures
including the ability to carry firearms and the ability to stop and require identification
from those in proximity to those nuclear plants
Security is of the utmost importance in protecting a nuclear power plant Members of the
public do not need to access a nuclear or similar power facility unless employed at the
facility or carrying out work for the facility111
The security of areas within nuclear power plants is governed by the Nuclear Security
110 R v Lindsay [2004] MJ No 380 (CA) 111 Though the discussion focuses on nuclear power plants I have been informed that other power generating infrastructures use the PWPA to designate their security officers as guards As a result if the PWPA is repealed it will be necessary to broaden the consultations in relation to these other power generating infrastructures
48
Regulations112 Every nuclear power plant must be located within a ldquoprotected areardquo113
This protected area is the area within a fenced perimeter which is alarmed and
continually patrolled This area must be equipped with devices that employ two
independent systems to detect intrusion into the area114 The Nuclear Security
Regulations also provide detailed specifications for the barrier which must enclose the
protected area115 In addition licensees must ldquoidentify all vital areas and implement
physical protection measures ndash including access control and measures designed to delay
unauthorized accessrdquo116
The Nuclear Security Regulations also provide detailed provisions regarding entry into
protected areas No person can ldquoenter a protected area without physical proof of the
recorded authorization of the licenseerdquo117 Further to this on entry into a protected area
ldquothat personrsquos identity shall be verified by two separate personnel identity verification
systems one of which is an access card reader and the other of which is a biometric
personnel identity verification devicerdquo118 Licensees must also ldquoensure that vehicle
portals are used for the entry and exit of land vehicles into and from a protected areardquo119
Physical protection measures are also required to reduce the chance of a forced land
vehicle entry into a protected area120
The power to conduct searches upon entry to a protected area is also provided by the
112 SOR2000-209 113 Ibid s 8114 Ibid s 11(a)(i)115 Ibid s 9116 Ibid s 141117 Ibid s 17(1)118 Ibid s 171119 Ibid s 91(1)120 Ibid s 91(4)
49
Nuclear Security Regulations Signs must be posted that are visible to people about to
enter the protected area stating that they must allow a nuclear security officer (ldquoNSOrdquo) to
ldquosearch them and everything in their possession including any land vehicle for weapons
and explosive substancesrdquo121 In addition when leaving the protected area people must
allow NSOs to ldquosearch them and everything in their possession including any land
vehicle for Category I II or III nuclear materialrdquo122 People are not permitted to enter or
leave a protected area unless these searches are carried out123 The Nuclear Security
Regulations provide for the method of search including ldquoa hand-held scanner a walk-
through scanner or any similar devicerdquo124 In addition if an NSO determines it
necessary a frisk search can be carried out by a person of the same sex125
I have been informed that the area outside of but adjacent to the ldquoprotected areardquo is
referred to as the ldquocontrolled areardquo This area includes roadways and waterways within
the nuclear facilityrsquos property boundaries adjacent to or in close proximity to the nuclear
power plantrsquos protected area and may be generally accessible to the public
As a result of the September 11 2001 terrorist attacks the Nuclear Security Regulations
were amended to require that high security nuclear facilities maintain an on-site armed
Nuclear Response Force (ldquoNRFrdquo)126 The NRF is composed of specialized NSOs
Section 32 of the Nuclear Security Regulations requires the NRF to be capable of making
an effective intervention taking into account the threat
121 Ibid s 27(1)(a)122 Ibid s 27(1)(b)123 Ibid s 27(2)124 Ibid s 27(5)(a)125 Ibid s 27(5)(b)126 Ibid s 32
50
Members of the NRF are mandated by the Nuclear Security Regulations to be ldquotrained in
the use of firearms authorized to carry firearms in Canada and qualified to use themrdquo127
However to satisfy this requirement the NRF resorts to the PWPA since the federal
regulations do not authorize the NRF to carry firearms without a licence However
under s 2(1) of the PWPA NSOs are designated as ldquoguardsrdquo with the powers of a peace
officer most significantly to carry and use firearms without having to be licensed128
Such a designation also enables the OPG to acquire and dispose of firearms
In the consultations I had with the OPG and the CNSC they advised me that NSOs
receive training equivalent to Canadian police standards and that NRF officers receive
training equivalent to federal and provincial police tactical team requirements
Another aspect of the PWPA used to secure nuclear power plants relates to powers
exercised by NSOs in ldquocontrolled areasrdquo The federal regulations do not provide the
NSOs with any power to demand identification within this area However pursuant to
the PWPA as appointed ldquoguardsrdquo the NSOs have the power to demand identity
verification in the controlled area They also have the authority to arrest anyone who
obstructs NSOs in the performance of their duties under the PWPA
In addition to using the PWPA to secure the controlled areas I have been advised by the
OPG that NSOs use powers pursuant to the PWPA to secure areas within 100 metres of a
nuclear facilityrsquos property line immediately adjacent to the controlled area These powers
are exercised under the broad language of the PWPA regarding ldquoapproaches to public
127 Ibid s 1 (on-site nuclear response force definition)128 Section 11707 of the Criminal Code exempts peace officers from licensing requirements for possessing firearms and other prohibited and restricted weapons
51
worksrdquo This is an illustration of the problem with the vagueness of this language in the
legislation As these powers are exercised on public land they could be challenged as a
potential infringement on individual rights and freedoms However I have been advised
that there have been no such incidents to date The need to ensure the security of these
facilities must be taken into the balance
NSOs must be able to monitor and control access to the controlled areas and areas close
to a nuclear power plantrsquos property line This provides for a more secure perimeter
around these facilities They need authority to challenge individuals acting in a suspicious
manner or conducting surveillance of nuclear facilities The OPG has informed me that
areas outside a nuclear facilityrsquos property line immediately adjacent to the controlled
area are still close enough to take advantage of the short distance to conduct intelligence
using high-powered surveillance equipment These nuclear power plants are not located
on isolated islands and are therefore vulnerable Both the Pickering Nuclear Generating
Station and the Darlington Nuclear Generating Station operate within major urban areas
being 30 km and 60 km east of downtown Toronto respectively I am advised that
previous events such as ldquoThe Toronto 18rdquo129 have shown that those intent on targeting
vital infrastructure such as power generating facilities often use reconnaissance and
intelligence gathering as precursor tactics
Recommendation
If the PWPA is to be repealed it is imperative that those who secure our nuclear and
power generating facilities be given the requisite specific legislative powers to do so
129 See for example ldquoLast 2 Toronto 18 accused found guiltyrdquo CBC News (23 June 2010) online cbcca lthttpwwwcbccanewscanadatorontostory20100623toronto-18-verdicthtmlgt
52
The source for these powers should be set out in the federal Nuclear Security
Regulations However if this is not a desired option the Government of Ontario must
consider specific legislation setting out the specific powers required to properly secure
these facilities and the specific location in which these powers can be exercised Such
legislation should not be passed without proper notice consultation and legislative
debate
53
SECTION 6 CONCLUSION
The PWPA was enacted in 1939 to support the war effort At the time the protection of
Ontariorsquos hydroelectric facilities from sabotage was of particular concern Since then the
PWPA has been used to provide the legal foundation for the powers exercised by the
police in providing court security and even more recently by the OPG in securing
nuclear power facilities In June 2010 the PWPA was used to provide powers to secure
intergovernmental conferences The vagueness of the PWPA permits it to be used in
situations when it is arguably not necessary and potentially abusive In my view the
PWPA has been used for purposes beyond its original intent
The time for the PWPA seems to have passed If the Government of Ontario enacts as I
have suggested specific legislation to provide for courthouse security and power
generating infrastructure security it would appear that there is no longer a need for the
PWPA I am also mindful of the existence of counter-terrorism and emergencies
legislation to deal with these situations as they arise
ldquoIn determining the boundaries of police powers caution is required to ensure the proper
balance between preventing excessive intrusions on an individualrsquos liberty and privacy
and enabling the police to do what is reasonably necessary to perform their duties in
protecting the publicrdquo130 The overly broad and vague language of the PWPA does not
strike this required balance with individual rights and freedoms
The late Justice Jackson of the United States Supreme Court stated that every
emergency power once conferred ldquolies about like a loaded weapon ready for the hand of
130 R v Clayton [2007] 2 SCR 725 at 742
54
any authority that can bring forward a plausible claim of an urgent needrdquo131 The need to
protect the public must be balanced with the requirement to preserve fundamental rights
and freedoms
Yet at the same time ldquoCanadians are entitled to demand the best public order policing
possible from their governmentrdquo132 There is no question that we live in a different world
post 911 We live in difficult times with constant threats both domestically and from
abroad The police clearly need to be given adequate powers to carry out their duties
The police use their expertise on a daily basis to assess the powers they require In
instances when they take action that exceeds their powers their actions are examined by
various mandated bodies This process I believe results in the proper balance between
police powers and individual rights and freedoms Therefore any legislation that purports
to grant special police powers must be specific and direct and developed in consultation
with stakeholders and tested through thorough debate in our transparent democratic
system
131 Korematsu v United States 323 US 214 (1944)132 Supra note 26 p 8
55
2 Trespass to Property Act
The Ontario Trespass to Property Act43 is a potential source of police power to arrest
without warrant those who are unlawfully on certain premises or who were recently
unlawfully on the premises and refuse to give their name and address44 This statute
deals with illegal entry into both private and public property by creating the offence of
trespass for those who without the express permission of the occupier enter on to
premises or engage in an activity on the premises when it is prohibited by the statute45
Though this statute is primarily used by private property owners to keep unwanted people
off of their property it has also been invoked by the Speaker of the House46 and by the
City of Toronto47 It must be noted however that using the Trespass to Property Act in
relation to removing individuals from ldquopublicrdquo places may raise Charter issues48
3 Foreign Missions and International Organizations Act
The RCMP as peace officers have the general duty to preserve the peace and prevent
crime and offences as set out in s 18 of the Royal Canadian Mounted Police Act49
Additional duties found in s 17 of the Royal Canadian Mounted Police Regulations
198850 include the protection of ldquointernationally protected personsrdquo as defined in s 2 of
the Criminal Code Internationally protected persons include heads of state and their
43 RSO 1990 c T2144 Ibid ss 9(1) 1045 Ibid s 2(1)46R v Behrens [2004] OJ No 5135 (CJ) The Court held that the issue of the trespass notices fell under the Speakerrsquos parliamentary privilege and were not reviewable even on the basis of a Charter argument47R v Semple [2004] OJ No 2137 (CJ)48 In R v Semple the defendants were charged under the Ontario Trespass to Property Act for entering the grounds of Toronto City Hall after being banned from doing so In the end the Court held that the defendantsrsquo peaceful entry onto the grounds was an expression as per s 2(b) of the Charter Torontorsquos notice under the Act infringed on this freedom and in these circumstances it could not be justified under s 1 of the Charter 49 RSC 1985 c R-1050 SOR88-361
27
family members The RCMPrsquos duty to protect internationally protected persons is also
found in s 6(1) of the Security Offences Act51
In addition Canada is a signatory of the United Nations Convention on the Prevention
and Punishment of Crimes against Internationally Protected Persons including
Diplomatic Agents52 This Convention provides that the Government of Canada must
protect visiting heads of state or government foreign ministers representatives or
officials of a state or any official or other agent of an international organization of an
intergovernmental character and the family members that accompany him or her The
RCMP has the responsibility to carry out these security measures
Pursuant to s 101(1) of the FMIOA ldquoThe Royal Canadian Mounted Police has the
primary responsibility to ensure the security for the proper functioning of any
intergovernmental conference in which two or more states participate that is attended by
persons granted privileges and immunities under this Act and to which an order made or
continued under this Act appliesrdquo
The powers to carry out this mandate are found in s 101(2) of the FMIOA ldquothe Royal
Canadian Mounted Police may take appropriate measures including controlling limiting
or prohibiting access to any area to the extent and in a manner that is reasonable in the
circumstancesrdquo It is noteworthy that the FMIOA has legislated the same powers
provided to the police under common law and statute
In order to trigger the RCMP powers described in s 101 the Governor in Council on the
51 RSC 1985 c S-752 UNGA Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons including Diplomatic Agents 20 February 1977 UN Doc I-15410
28
recommendation of the Minister of Foreign Affairs and pursuant to s 5 of the FMIOA
made the G8 Summit Privileges and Immunities Order 201053 on December 10 2009
This order was repealed and a subsequent order54 was made on January 13 2010 A
similar order55 for the G20 Summit was made on March 11 201056
Therefore during the G20 the RCMP had the specific statutory power to limit or
prohibit access to any area and to any extent as long as the measures were appropriate
and done in a manner that was reasonable in the circumstances ldquoThe RCMP may secure
the perimeter of the security zone on land with fencing and restrict access to this zone
through the use of checkpoints and other measuresrdquo57
Though not invoked during the G20 s 101(4) of the FMIOA provides that arrangements
can be entered into with a province concerning the responsibilities of members of the
RCMP and members of the provincial and municipal police forces with respect to
ensuring the security for the proper functioning of an intergovernmental conference No
information was provided to me as to why such an arrangement was not entered into for
the G20
These intergovernmental security provisions of the FMIOA were enacted just prior to the
G8 being held in Kananaskis Alberta in 2002 In light of violent protests at international
events and the 911 terrorist attacks in the United States the Federal Government
53 SOR2009-33654 SOR2010-1355 SOR2010-6256 Supra note 17 ldquoUpon such an Order being made the RCMP in co-operation and collaboration with other police forces becomes impressed with the primary responsibility of ensuring not only the protection of the IPPs but also ensuring lsquosecurity for the proper functioningrsquo of the intergovernmental conference To that end the FMIOA provides that the lsquoappropriate measures including controlling limiting or prohibiting access to any area to the extent and in a manner that is reasonable in the circumstancesrsquo may be takenrdquo57 Ibid
29
considered it timely ldquoto clarify in statute the present common law authority for police to
provide security and protection for high profile international eventsrdquo58 At such events it
was intended that ldquothe RCMP is the lead to make sure that security is providedrdquo59
Given that it was clearly the intention of the Federal Government to have the RCMP as
the lead police force at these international events consideration should be given to
expand the use of the FMIOA to cover all large scale international events such as the
Olympics the Pan American Games and international trade fairs as these events are
routinely attended by heads of state and senior government officials Most recently
Vancouver held the 2010 Olympic and Paralympic Winter Games60 Though federal and
municipal legislation were passed to assist in securing the Games expansion and
application of the FMIOA would have been a better approach The RCMP as the national
police force ought to be in charge pursuant to their authority under the FMIOA
4 Emergency Legislation
Through my consultations with the parties listed in Appendix 2 I heard that while we are
not in a time of war as in 1939 when the PWPA was enacted we live in an age of
international and local terrorism threats Our democratic society must be vigilant in
58 Canada House of Commons Debates 37th Parl 1st Sess No 93 (5 October 2001) at 100059 Canada House of Commons Standing Committee on Public Safety and National Security 40th Parl 3rd
Sess Evidence (25 October 2010)60 In anticipation of this event the Governor General in Council on the recommendation of the Minister of Transport pursuant to the Aeronautics Act (RSC 1985 c A-2) and the Canadian Air Transport Security Authority Act (SC 2002 c 9 s 2) passed the Vancouver 2010 Aviation Security Regulations (SOR2009-298) The purpose of the regulations was to enhance aviation security during the Games The Regulation provided for extra security and extra authorized means to conduct screenings In addition the Vancouver City Council passed the very lengthy By-law No 9962 known as the ldquoVancouver 2010 Olympic and Paralympic Winter Games By-Lawrdquo Specific security measures to be employed at a city live site (described thoroughly in a Schedule to the By-Law) that were enabled by this By-Law included The installation and monitoring of airport style and other security measures including magnetometers and X-ray machines the installation and monitoring of closed circuit television cameras the searching of any person who wished to enter on to a city live site and any bag luggage or other container carried by such person and the prohibiting of access to or removal from a city live site any person who refused to submit to a search
30
maintaining a proper level of security while recognizing that democratic values and
security issues can conflict where public order is at issue It is important to highlight that
provincial legislation exists dealing with both terrorism threats and emergency situations
I have been informed that federal and provincial counter-terrorism plans exist that
address preventing and responding to acts of terrorism
The Police Services Act regulations mandate police forces to establish procedures
consistent with federal and provincial counter-terrorism plans61 and to have policies with
respect to counter-terrorism62 In addition the Emergency Management and Civil
Protection Act allows for orders to be made in situations specifically designated an
ldquoemergencyrdquo63 by the Lieutenant Governor in Council or the Premier that regulate or
prohibit travel and movement to from or within any specified area64 Therefore the
PWPA is not needed to deal with these emergency situations as specific more recent
emergency legislation is in place for that very purpose
C Gaps in Canadian Police Powers
The Ministry of Community Safety and Correctional Services provided me with an
interesting article published in 2010 entitled ldquoThe Gap in Canadian Police Powers
61 Adequacy and Effectiveness of Police Services O Reg 399 s 2862 Ibid s 2963 Section 1 of the Emergency Management and Civil Protection Act defines an ldquoemergencyrdquo as ldquoemergencyrdquo means a situation or an impending situation that constitutes a danger of major proportions that could result in serious harm to persons or substantial damage to property and that is caused by the forces of nature a disease or other health risk an accident or an act whether intentional or otherwise (ldquosituation drsquourgencerdquo)64 RSO 1990 c E9 s 702(4)
31
Canada needs lsquoPublic Order Policingrsquo Legislationrdquo and co-authored by Wesley Pue and
Robert Diab65
This article was prompted by the debate over the cost nature and extent of security to be
employed at the Vancouver 2010 Winter Olympics The authors criticized the fact that
policing authorities in Canada ldquolack specific statutory authorization to take measures
commonly thought necessary to their missionrdquo66 These measures included security
fences in public areas designated protest areas restricted access to public space police
surveillance and searches without cause
The authors recognize that such powers may be necessary but note that ldquono legislature
has ever expressly conferred such powers on policing authorities outside the context of
international intergovernmental conferences Nor does the common law accord such
powers to state officials on its ownrdquo67 I respectfully disagree with this latter statement
It is my view the police have powers pursuant to the common law and statute as I have
discussed in the preceding section
The authors referred to R v Knowlton68 which I have previously discussed While the
authors give Knowlton a very narrow interpretation stating that ldquoits binding principle is a
good deal narrower than the words taken out of context might suggestrdquo69 I however am
of the view that the decision supports the proposition that police have a broad range of
65 Wesley Pue and Robert Diab ldquoThe Gap In Canadian Police Powers Canada Needs lsquoPublic Order Policingrsquo Legislationrdquo (2010) 28 Windsor Rev Legal Soc Issues 87 Wesley Pue is a professor of legal history at the University of British Columbia and Robert Diab is a PhD candidate at the UBC Faculty of Law66 Ibid p 8867 Ibid68 Supra note 3469 Supra note 65 p 92
32
responsibilities with deep historical roots in the common law and codified in statute a
position shared by the Federal Government when it introduced amendments to the
FMIOA The actions of the police in Knowlton were necessarily incidental to their
common law police duties and powers
The authors conclude that this ldquoauthority of police to create zones of exclusion either as
an incident of the general and ancient duties of constableshelliphas never been established in
the courtsrdquo70 I am of the view however that the role of the police in establishing
security zones relating to a crime a serious accident or other emergency is a routine and
well-accepted use of police powers pursuant to their common law and statutory duties I
am not suggesting that this common law authority permits the police to establish security
zones ldquofor the proper functioning of any intergovernmental conference in which two or
more states participaterdquo71 larger than necessary to fulfill their purpose The FMIOA as
amended in 2002 provides the RCMP with ldquoprimary responsibility to ensure the security
for the proper functioning of the intergovernmental conferencerdquo72 It is interesting
however that when the Federal Government was enacting this specific authority the
legislative debates indicated that the government was merely clarifying ldquoin statute the
present common law authority for police to provide security and protection for high
profile international eventsrdquo73
Security perimeters are routinely erected by police in the context of the commission of a
crime motor vehicle and other accidents as well as the Santa Claus parade and other
70 Ibid p 9671 Supra note 8 s 101(1)72 Ibid73 Supra note 58
33
parades It would in my view be quite impractical and unnecessary to legislate an
extensive code of police powers given their common law and statutory responsibilities to
generally maintain public order It is not advisable in my opinion to be prescriptive in
any way regarding what actions the police can take since they must assess what the
situation warrants while at the same time considering individual rights and freedoms
The details of any police response to an emergency must be tailored to the exigencies
related to the situation
The police clearly have common law and statutory authority to conduct warrantless
searches in specific situations (ldquoin exigent circumstancesrdquo)74 However when
warrantless searches must be carried out on a regular routine basis the police are acting
more like full time security guards and there should be specific statutory authority
provided to give such powers
I certainly accept the general proposition the authors assert that the mobility rights of
citizens should not be unreasonably or unfairly dealt with However one only need be
aware of the massive amount of construction taking place on the streets of Toronto as this
Report is being written to appreciate that it is not always reasonable to expect that ldquothe
rights of businesses homeowners and ordinary citizens to go about their routine
activities without interruptionrdquo75 will go unhindered While generally desirable it cannot
be legally guaranteed At the same time the authors do concede that ldquoimportant as they
74 Supra note 42 s 4871175 Supra note 65 p 89
34
are the rights of assembly movement and protest are not unqualified They can ndash and
should ndash be balanced against other important public needsrdquo76
In my view public policing at times requires innovation as it often benefits from
creative problem solving If police abuse their common law powers related to ldquopublic
order policingrdquo they are accountable to a multiplicity of authorities and the rule of law
most particularly the Charter The legal rights outlined in the Charter such as ldquothe
principles of fundamental justicerdquo77 security ldquoagainst unreasonable search and seizurerdquo78
and ldquothe right not to be arbitrarily detained or imprisonedrdquo79 are described very
generally However they were chosen deliberately as it was recognized that in each case
there is an inherent tension between imposing security measures and fundamental rights
and freedoms Determining which is paramount will be based on the facts of each case
76 Ibid p 9177 Canadian Charter of Rights and Freedoms s 7 Part I of the Constitution Act 1982 being Schedule B to the Canada Act 1982 (UK) 1982 c 1178 Ibid s 879 Ibid s 9
35
SECTION 5 LEGAL ANALYSIS OF THE PUBLIC WORKS PROTECTION ACT
A Legal Analysis of the Legislation
Many stakeholders have questioned the constitutional validity of the PWPA and O Reg
23310 The Ontario Ombudsman seriously questioned whether O Reg 23310 could
pass ldquoconstitutional musterrdquo80 The CCLA suggested that the broad police powers
granted under the PWPA were inconsistent with the Charter81
To the same effect were comments made by Premier Dalton McGuinty who described
the PWPA as ldquoan archaic law that was used to undermine Torontoniansrsquo civil rights
during the G20rdquo82 He elaborated83
The issue is whether itrsquos appropriate given our present-day values and given an old law which I am confident doesnrsquot strike the balance that you and I would want today in terms of public safety and individual freedom of expressionhellipWhen you start talking about civil rights individual freedoms yoursquore talking about those things that in fact define us as a free and democratic societyhellipItrsquos something that is real and meaningful and important to all of us
The Terms of Reference for this Review do not require that I conduct a constitutional
analysis of the PWPA I have however been asked to consider areas for reform and if
appropriate make specific recommendations for amendment or repeal This does require
that I therefore consider whether the legislation may be vulnerable to constitutional
challenge
Section 2(b) of the Charter guarantees everyone the fundamental freedom of expression
The definition of ldquoexpressionrdquo has been interpreted broadly ldquoActivity is expressive if it
80 Supra note 32 at para 23381 Supra note 26 p 982 Robert Benzie and Rob Ferguson ldquoMcGuinty shifts focus to fixing G20 lawrdquo Toronto Star (10 December 2010) online thestarcom lthttpwwwthestarcomnewscanadaarticle905436--mcguinty-shifts-focus-to-fixing-g20-lawgt 83 Ibid
36
attempts to convey meaningrdquo84 While freedom of expression is not absolute there is
very little that is not considered expression However expression that advocates violence
is not protected under s 2(b)85
The Supreme Court of Canada in Committee for the Commonwealth of Canada v
Canada held that s 2(b) ldquodoes not encompass the right to use any and all government
property for purposes of disseminating onersquos views on public matters but I have no doubt
that it does include the right to use for that purpose streets and parks which are dedicated
to the use of the public subject no doubt to reasonable regulation to ensure their
continued use for the purposes to which they are dedicatedrdquo86 It seems clear that
protesting in public streets is a form of expression protected by s 2(b) Protesting at an
intergovernmental conference is clearly expressive in nature
In challenges alleging that a statute contravenes s 2(b) of the Charter a court would
examine whether the purpose or effect of a law contravenes section 2(b)87 There is no
reason to suggest that the purpose of the PWPA was to infringe the freedom of
expression The purpose of the PWPA is to protect important public infrastructures A
court would then have to consider whether the effect of the PWPA may have resulted in
an infringement of freedom of expression
O Reg 23310 defined significant portions of downtown Toronto as a ldquopublic workrdquo
Section 3(c) of the PWPA allows peace officers to refuse entry into public works which
therefore limits the areas in which protesters could express themselves By creating the
84 Irwin Toy Ltd v Queacutebec (Attorney General) [1989] 1 SCR 927 at 96885 Ibid at 97086 [1991] 1 SCR 139 at 165-16687 Peter Hogg Constitutional Law of Canada loose-leaf (consulted on 7 January 2011) 5th ed (Toronto Thomson Reuters Canada Limited 2007) at 43-6
37
relatively large security perimeter designated by the regulation individuals may allege
they were not permitted to communicate directly with those they were protesting against
Furthermore individuals could not communicate in public places such as public streets
where the right to freedom of expression has previously been found to exist88
Commissioner Ted Hughes completed an interim report following a public hearing into
the complaints regarding events that took place with respect to the Asia Pacific Economic
Cooperation (APEC) Conference in Vancouver British Columbia in November 1997
Commissioner Hughes recommended that generous opportunity should be afforded to
peaceful protesters to be seen in their protest activities by guests at the event89
Section 7 of the Charter provides that ldquoEveryone has the right to life liberty and security
of the person and the right not to be deprived thereof except in accordance with the
principles of fundamental justicerdquo The PWPA raises issues regarding the liberty and
security of the person in providing for warrantless searches and stopping for
identification Furthermore vague laws offend two fundamental values of our legal
system90 Firstly individuals are not provided with sufficient guidance as to what
behaviour a law prohibits Secondly those in charge of enforcing the law are not
provided with clear guidance as to how to enforce it A vague law can lead to inconsistent
and arbitrary enforcement91
88 Supra note 86 89 Canada Commission for Public Complaints Against the RCMP APEC ndash Commission Interim Report (31 July 2001) at s 3111 (Commissioner Ted Hughes QC) online Commission for Public Complaints Against the RCMP lthttpwwwcpc-cppgccaprrrepphrapecapec-31-engaspxgt90 Supra note 87 at 47-60 91 ldquoA vague provision does not provide an adequate basis for legal debate that is for reaching a conclusion as to its meaning by reasoned analysis applying legal criteria It does not sufficiently delineate any area of risk and thus can provide neither fair notice to the citizen nor a limitation of enforcement discretion Such
38
As described by Professor Hogg92
The requirement that any limit on rights be prescribed by law reflects two values that are basic to constitutionalism or the rule of law First in order to preclude arbitrary and discriminatory action by government officials all official action in derogation of rights must be authorized by law Secondly citizens must have reasonable opportunity to know what is prohibited so that they can act accordingly Both these values are satisfied by a law that fulfils two requirements (1) the law must be adequately accessible to the public and (2) the law must be formulated with sufficient precision to enable people to regulate their conduct by it and to provide guidance to those who apply the law
As I stated earlier the phrase ldquoany approach theretordquo contained in s 3(a) of the PWPA is
potentially vague No criteria are provided to assist in determining when one is on ldquoany
approach theretordquo A phrase such as ldquoany approach theretordquo is subject to many potential
interpretations It is arguable that this language does not provide reasonable guidance for
individuals to obey the law and for the law to be consistently enforced
Section 8 of the Charter provides that ldquoEveryone has the right to be secure against
unreasonable search or seizurerdquo A warrantless search or seizure is only reasonable if the
search was authorized by law the law itself is reasonable and the manner in which the
search carried out was reasonable93 The fact that no reasonable or probable suspicions
are needed to carry out a search pursuant to s 3(b) of the PWPA raises some issues The
only prerequisite to such a search is that the person or vehicle being subjected to a search
is entering or attempting to enter a public work
a provision is not intelligible to use the terminology of previous decisions of this Court and therefore it fails to give sufficient indications that could fuel a legal debaterdquo (R v Nova Scotia Pharmaceutical Society [1992] 2 SCR 606 at 639-640) 92 Supra note 87 at 38-1293 R v Nolet [2010] SCJ No 24 at para 21
39
Whether the PWPArsquos s 3(b) authority to undertake warrantless searches is ldquoreasonablerdquo
depends on the reasonableness of the impact on the subject of the search ldquoThe
individuals reasonable expectation of privacy must of course be balanced against the
public interest in effective law enforcementrdquo94 It is harder to justify a warrantless search
where the reasonable expectation of privacy is higher For example interference with
bodily integrity will raise the standard of reasonableness Conversely in situations where
people expect to have a lower level of privacy the standard to prove reasonableness is
lower
One rightfully has some expectation of privacy when in public but it does not rise to the
level of privacy that one expects in onersquos home The expectation of privacy further
decreases when one attempts to enter a ldquopublic workrdquo especially in the context of a
secured barrier to an intergovernmental conference
Section 9 of the Charter provides that ldquoEveryone has the right not to be arbitrarily
detained or imprisonedrdquo95 Under s 3(a) of the PWPA a person entering or attempting to
enter or approach a public work must provide his or her name and address and state the
purpose for which he or she desires to enter the public work In order for a guard or
peace officer to carry out this duty the guard or peace officer may ldquostoprdquo the person from
further approaching or entering the public work and the person is not permitted under the
statute to decide not to enter By so doing it is arguable the guard or peace officer has
assumed control over the movement of the individual by a demand or direction The
94 R v Rao [1984] OJ No 3180 at para 79 (CA)95 ldquoDetention under s 9hellipof the Charter refers to a suspension of the individualrsquos liberty interest by a significant physical or psychological restraint Psychological detention is established either where the individual has a legal obligation to comply with the restrictive request or demand or a reasonable person would conclude by reason of the state conduct that he or she had no choice but to complyrdquo (R v Grant [2009] SCJ No 32 at para 44)
40
PWPA provides for a significant legal consequence if the demand or direction is not
followed since ldquoEvery person who neglects or refuses to comply with a request or
direction made under this Act by a guard or peace officer and every person found upon a
public work or any approach thereto without lawful authority the proof whereof lies on
him or her is guilty of an offence and on conviction is liable to a fine of not more than
$500 or to imprisonment for a term of not more than two months or to bothrdquo96
Pursuant to s 3(b) of the PWPA a guard or peace officer may search any person entering
or attempting to enter a public work These searches would necessitate the detention of a
person If a guard or peace officer performs such a search he or she has taken control
over the movement of the person by a demand or direction The same serious legal
consequence results from failing to obey this demand or direction as that which results
from failing to obey the demand or direction pursuant to s 3(a) of the PWPA As a
result ldquodetentionsrdquo could occur pursuant to both s 3(a) and s 3(b) of the PWPA
The question that would need to be addressed in any challenge to the PWPA is whether
the detentions permitted by the PWPA are arbitrary in nature The use of the term ldquoany
approach theretordquo is vague and imprecise A person could be deemed to be on ldquoany
approach theretordquo a great distance from the entrance of a public work and their detention
might very well be arbitrary In addition the fact that the guards and peace officers
determine the boundaries of the ldquoapproachesrdquo which cannot be contested seems
arbitrary as well as who they chose to search
96 It should be noted that not all communications with state authorities and police officers will amount to a detention The question is whether a person may reasonably believe that he or she is free to refuse to comply
41
Section 11(d) of the Charter provides that ldquoAny person charged with an offence has the
right to be presumed innocent until proven guilty according to law in a fair and public
hearing by an independent and impartial tribunalrdquo This requires that the Crown have the
burden of proving the guilt of an individual charged with an offence97 Provisions that
place the burden on the accused to disprove on the balance of probabilities an essential
element of an offence raises s 11(d) concerns because convictions would be possible
even if reasonable doubt existed98 The presumption of innocence is not only infringed
upon by a requirement that an accused disprove an essential element of an offence but
also any requirement on an accused to prove a fact on the balance of probabilities to
avoid conviction
Section 5(1) of the PWPA states that ldquoEvery person who neglects or refuses to comply
with a request or direction made under this Act by a guard or peace officer and every
person found upon a public work or any approach thereto without lawful authority the
proof whereof lies on him or her is guilty of an offence and on conviction is liable to a
fine of not more than $500 or to imprisonment for a term of not more than two months or
to bothrdquo For the offence of being found upon a public work or on any approach to a
public work without lawful authority the burden of proof has been ldquoshiftedrdquo from the
Crown to the accused to prove lawful authority
As the foregoing analysis reveals there are certainly many concerns that arise when one
places the PWPA under the lens of the Charter However the rights and freedoms
provided by the Charter are not absolute They are ldquosubject only to such reasonable
97 R v Oakes [1986] 1 SCR 10398 Ibid at 132
42
limits prescribed by law as can be demonstrably justified in a free and democratic
societyrdquo99
In assessing whether a law which infringes the Charter is saved by s 1 a court examines
both the object of the law and the measures taken to achieve that objective A lawrsquos
objective achieves the status of being sufficiently important to justify overriding a
Charter right only when it is consistent with the values of a free and democratic society
The objective must relate to pressing and substantial concerns and not concerns that are
trivial and must be focussed on ldquothe realization of collective goals of fundamental
importancerdquo100 The measures adopted must be ldquorationally connectedrdquo to the objective of
the law101 The measures ldquoshould impair lsquoas little as possiblersquo the right or freedom in
questionrdquo102 Furthermore there must be ldquoa proportionality between the effects of the
measures which are responsible for limiting the Charter right or freedom and the
objective which has been identified as of lsquosufficient importancersquordquo103
An issue that may affect whether the potential limitation on rights and freedoms of the
PWPA and O Reg 23310 were ldquoprescribed by lawrdquo is whether the regulation was
adequately accessible to the public The Ontario Ombudsman the CCLA and the Ontario
Bar Association (ldquoOBArdquo) all noted a lack of notice regarding O Reg 23310 and its
effects prior to and during the G20 While the text of the regulation was available prior
99 Charter s 1 The Superior Court of Quebec decision of Tremblay v Queacutebec (Attorney General) [2001] JQ No 1504 (CS) involved an interim injunction brought by an applicant who was denied entry into the secured perimeter during the 2001 Summit of the Americas in Queacutebec City The applicant sought an injunction to either eliminate the security barrier or to be given a pass to let him within the secured perimeter Even though the Court held that the erection of the security zone violated the applicantrsquos right to freedom of expression and peaceful assembly The court held that the infringement was ldquodemonstrably justified in a free and democratic societyrdquo100 Supra note 97 at 136101 Ibid at 139102 Ibid103 Ibid
43
to the G20 it was only available on a website not frequently accessed by the public
Since O Reg 23310 was not published in The Ontario Gazette until after it was
revoked it may be that the regulation was not adequately accessible to the public
Reverse onus offences have been found to be ldquorationally connectedrdquo when there is plainly
a rational connection between the proven fact and the fact to be presumed Reverse
onuses have also been upheld when the burden placed on the Crown would be virtually
impossible to meet (such as proving sanity)104 Even if the accused only has the burden
of disproving the fact that heshe did not have lawful authority to be in a public work or
on an approach thereto there may not be a rational connection between the proven fact
and the fact to be presumed
The history of threats and violence at previous intergovernmental conferences
demonstrated that the protection of G20 participants was a pressing and substantial
concern However given the broadness of the PWPA every exercise of it raises the
potential for Charter scrutiny
Recommendation
Given the public policy considerations I have raised regarding the PWPA and Charter
concerns that could arise I recommend that the PWPA be repealed after the Province has
considered potential policy and security gaps as a result of its repeal
B Other uses of the Public Works Protection Act
It appears from my consultations with stakeholder groups that if the PWPA is repealed
104 R v Chaulk [1990] 3 SCR 1303 at 1340
44
there are two areas which may require legislation to provide specific peace officer
powers These two areas are court security and the protection of nuclear power facilities
and other power generating infrastructures
1 Court Security
During my decade as Ontariorsquos Attorney General (1975 to 1985) there were three
murders in provincial courthouses as well as many threats to members of courthouse staff
and others As violent acts in courthouses can be anticipated courtroom security is often
required
Individuals are compelled to go to court for a variety of reasons such as appearing as an
accused as a witness or for jury duty To provide protection to those who work there or
are compelled to attend an adequate level of court security may require a search without
warrant of each and every individual who seeks to enter a courthouse It is not reasonable
to require prior judicial authorization for each search that takes place
The courts have considered the constitutionality of these provisions of the PWPA in
conjunction with section 137 of the Ontario Police Services Act in the context of court
security
Section 137 of the Ontario Police Services Act imposes a responsibility on municipal
police services boards to secure the premises where court proceedings are conducted and
includes
1 Ensuring the security of judges and of persons taking part in or attending proceedings
45
2 During the hours when judges and members of the public are normally present ensuring the security of the premises
3 Ensuring the secure custody of persons in custody who are on or about the premises including persons taken into custody at proceedings
4 Determining appropriate levels of security for the purposes of paragraphs 1 2 and 3
In R v Campanella105 Ms Campanella was attending the John Sopinka Courthouse in
Hamilton At the courthouse there were signs posted stating that those who entered
would be searched for weapons When Ms Campanellarsquos bag was searched marijuana
was found and she was charged with the possession of marijuana She argued that her s
8 Charter protection against unreasonable search and seizure had been violated and the
marijuana discovered during the search should therefore be excluded as evidence The
trial judge and the summary convictions appeal court rejected the section 8 Charter
argument and the appellant appealed to the Ontario Court of Appeal
The Ontario Court of Appeal agreed that ldquogiven the importance of the government
objective and the context in which these searches take place it is reasonable to authorize
warrantless searches of those entering courthouse facilitiesrdquo106 The Court stated ldquothe
only effective way to diminish the risk in a large courthouse is to subject everyone
without prior security clearance to some kind of inspection I can see no other feasible
means of achieving the aimrdquo107
The Court also pointed out the concern relating to the erosion of the benefits and
105 [2002] OJ No 5104 (SCJ) affrsquod [2005] OJ No 1345 (CA) [ldquoCampanellardquo]106 R v Campanella [2005] OJ No 1345 at para 17 (CA)107 Ibid at para 19
46
protections conferred by s 8 of the Charter108
I am sensitive to the concern that we should not erode the benefits and protections of s 8 by gradually sanctioning ever-greater intrusions into privacy because of unfounded fears We should not lightly accept that searches in public places are justified solely because people have become used to them and expect them However the record in this case establishes the justification for the kinds of searches carried out in this case
Ultimately the appeal was dismissed and s 137 of the Police Services Act and s 3(b) of
the PWPA) were held to comply with s 8 of the Charter109
In its consultations with me the OBA similarly stated that the existing nature of court
security is necessary and is generally ldquowell toleratedrdquo At the same time however it
submits that the security regime should not be ldquoshoehornedrdquo into the PWPA regime and
that it would be preferable to provide a legislative framework tailored for the specific
security requirements While the PWPA has been relied upon as support for the exercise
of powers by the police in providing court security the OBA submits that the PWPArsquos
ldquosingle security schemerdquo which declares something a ldquopublic workrdquo is an ldquoawkward
blunt instrument in a world where more specialized tools are necessaryrdquo When
warrantless searches are being done on a routine basis it is advisable to have specific
legislation providing peace officers with such power
Recommendation
Court security legislation is currently in place in many jurisdictions across Canada and
contain provisions that permit warrantless searches of persons wanting to access a
108 Ibid at para 25109 The Court in R v SS [2005] OJ No 5002 (SCJ) agreed with the findings and rationale of the Court of Appeal in Campanella
47
courthouse The constitutional validity of such legislation in Manitoba was upheld by that
provincersquos highest court110
Given the ongoing need for warrantless searches at courthouses the Province of Ontario
should consider specific court security legislation in Ontario to support the security
measures in our courthouses if the PWPA is to be repealed taking into consideration the
responsibilities of the municipal police services boards provided in s 137 of the Police
Services Act This legislation should only be passed after proper notice consultation and
legislative debate
2 Power Generating Infrastructures
It is clear from the submissions that I received from representatives of OPG and the
Canadian Nuclear Safety Commission (ldquoCNSCrdquo) that the PWPA currently plays a role in
providing security officers with the powers to secure power generating infrastructures
including the ability to carry firearms and the ability to stop and require identification
from those in proximity to those nuclear plants
Security is of the utmost importance in protecting a nuclear power plant Members of the
public do not need to access a nuclear or similar power facility unless employed at the
facility or carrying out work for the facility111
The security of areas within nuclear power plants is governed by the Nuclear Security
110 R v Lindsay [2004] MJ No 380 (CA) 111 Though the discussion focuses on nuclear power plants I have been informed that other power generating infrastructures use the PWPA to designate their security officers as guards As a result if the PWPA is repealed it will be necessary to broaden the consultations in relation to these other power generating infrastructures
48
Regulations112 Every nuclear power plant must be located within a ldquoprotected areardquo113
This protected area is the area within a fenced perimeter which is alarmed and
continually patrolled This area must be equipped with devices that employ two
independent systems to detect intrusion into the area114 The Nuclear Security
Regulations also provide detailed specifications for the barrier which must enclose the
protected area115 In addition licensees must ldquoidentify all vital areas and implement
physical protection measures ndash including access control and measures designed to delay
unauthorized accessrdquo116
The Nuclear Security Regulations also provide detailed provisions regarding entry into
protected areas No person can ldquoenter a protected area without physical proof of the
recorded authorization of the licenseerdquo117 Further to this on entry into a protected area
ldquothat personrsquos identity shall be verified by two separate personnel identity verification
systems one of which is an access card reader and the other of which is a biometric
personnel identity verification devicerdquo118 Licensees must also ldquoensure that vehicle
portals are used for the entry and exit of land vehicles into and from a protected areardquo119
Physical protection measures are also required to reduce the chance of a forced land
vehicle entry into a protected area120
The power to conduct searches upon entry to a protected area is also provided by the
112 SOR2000-209 113 Ibid s 8114 Ibid s 11(a)(i)115 Ibid s 9116 Ibid s 141117 Ibid s 17(1)118 Ibid s 171119 Ibid s 91(1)120 Ibid s 91(4)
49
Nuclear Security Regulations Signs must be posted that are visible to people about to
enter the protected area stating that they must allow a nuclear security officer (ldquoNSOrdquo) to
ldquosearch them and everything in their possession including any land vehicle for weapons
and explosive substancesrdquo121 In addition when leaving the protected area people must
allow NSOs to ldquosearch them and everything in their possession including any land
vehicle for Category I II or III nuclear materialrdquo122 People are not permitted to enter or
leave a protected area unless these searches are carried out123 The Nuclear Security
Regulations provide for the method of search including ldquoa hand-held scanner a walk-
through scanner or any similar devicerdquo124 In addition if an NSO determines it
necessary a frisk search can be carried out by a person of the same sex125
I have been informed that the area outside of but adjacent to the ldquoprotected areardquo is
referred to as the ldquocontrolled areardquo This area includes roadways and waterways within
the nuclear facilityrsquos property boundaries adjacent to or in close proximity to the nuclear
power plantrsquos protected area and may be generally accessible to the public
As a result of the September 11 2001 terrorist attacks the Nuclear Security Regulations
were amended to require that high security nuclear facilities maintain an on-site armed
Nuclear Response Force (ldquoNRFrdquo)126 The NRF is composed of specialized NSOs
Section 32 of the Nuclear Security Regulations requires the NRF to be capable of making
an effective intervention taking into account the threat
121 Ibid s 27(1)(a)122 Ibid s 27(1)(b)123 Ibid s 27(2)124 Ibid s 27(5)(a)125 Ibid s 27(5)(b)126 Ibid s 32
50
Members of the NRF are mandated by the Nuclear Security Regulations to be ldquotrained in
the use of firearms authorized to carry firearms in Canada and qualified to use themrdquo127
However to satisfy this requirement the NRF resorts to the PWPA since the federal
regulations do not authorize the NRF to carry firearms without a licence However
under s 2(1) of the PWPA NSOs are designated as ldquoguardsrdquo with the powers of a peace
officer most significantly to carry and use firearms without having to be licensed128
Such a designation also enables the OPG to acquire and dispose of firearms
In the consultations I had with the OPG and the CNSC they advised me that NSOs
receive training equivalent to Canadian police standards and that NRF officers receive
training equivalent to federal and provincial police tactical team requirements
Another aspect of the PWPA used to secure nuclear power plants relates to powers
exercised by NSOs in ldquocontrolled areasrdquo The federal regulations do not provide the
NSOs with any power to demand identification within this area However pursuant to
the PWPA as appointed ldquoguardsrdquo the NSOs have the power to demand identity
verification in the controlled area They also have the authority to arrest anyone who
obstructs NSOs in the performance of their duties under the PWPA
In addition to using the PWPA to secure the controlled areas I have been advised by the
OPG that NSOs use powers pursuant to the PWPA to secure areas within 100 metres of a
nuclear facilityrsquos property line immediately adjacent to the controlled area These powers
are exercised under the broad language of the PWPA regarding ldquoapproaches to public
127 Ibid s 1 (on-site nuclear response force definition)128 Section 11707 of the Criminal Code exempts peace officers from licensing requirements for possessing firearms and other prohibited and restricted weapons
51
worksrdquo This is an illustration of the problem with the vagueness of this language in the
legislation As these powers are exercised on public land they could be challenged as a
potential infringement on individual rights and freedoms However I have been advised
that there have been no such incidents to date The need to ensure the security of these
facilities must be taken into the balance
NSOs must be able to monitor and control access to the controlled areas and areas close
to a nuclear power plantrsquos property line This provides for a more secure perimeter
around these facilities They need authority to challenge individuals acting in a suspicious
manner or conducting surveillance of nuclear facilities The OPG has informed me that
areas outside a nuclear facilityrsquos property line immediately adjacent to the controlled
area are still close enough to take advantage of the short distance to conduct intelligence
using high-powered surveillance equipment These nuclear power plants are not located
on isolated islands and are therefore vulnerable Both the Pickering Nuclear Generating
Station and the Darlington Nuclear Generating Station operate within major urban areas
being 30 km and 60 km east of downtown Toronto respectively I am advised that
previous events such as ldquoThe Toronto 18rdquo129 have shown that those intent on targeting
vital infrastructure such as power generating facilities often use reconnaissance and
intelligence gathering as precursor tactics
Recommendation
If the PWPA is to be repealed it is imperative that those who secure our nuclear and
power generating facilities be given the requisite specific legislative powers to do so
129 See for example ldquoLast 2 Toronto 18 accused found guiltyrdquo CBC News (23 June 2010) online cbcca lthttpwwwcbccanewscanadatorontostory20100623toronto-18-verdicthtmlgt
52
The source for these powers should be set out in the federal Nuclear Security
Regulations However if this is not a desired option the Government of Ontario must
consider specific legislation setting out the specific powers required to properly secure
these facilities and the specific location in which these powers can be exercised Such
legislation should not be passed without proper notice consultation and legislative
debate
53
SECTION 6 CONCLUSION
The PWPA was enacted in 1939 to support the war effort At the time the protection of
Ontariorsquos hydroelectric facilities from sabotage was of particular concern Since then the
PWPA has been used to provide the legal foundation for the powers exercised by the
police in providing court security and even more recently by the OPG in securing
nuclear power facilities In June 2010 the PWPA was used to provide powers to secure
intergovernmental conferences The vagueness of the PWPA permits it to be used in
situations when it is arguably not necessary and potentially abusive In my view the
PWPA has been used for purposes beyond its original intent
The time for the PWPA seems to have passed If the Government of Ontario enacts as I
have suggested specific legislation to provide for courthouse security and power
generating infrastructure security it would appear that there is no longer a need for the
PWPA I am also mindful of the existence of counter-terrorism and emergencies
legislation to deal with these situations as they arise
ldquoIn determining the boundaries of police powers caution is required to ensure the proper
balance between preventing excessive intrusions on an individualrsquos liberty and privacy
and enabling the police to do what is reasonably necessary to perform their duties in
protecting the publicrdquo130 The overly broad and vague language of the PWPA does not
strike this required balance with individual rights and freedoms
The late Justice Jackson of the United States Supreme Court stated that every
emergency power once conferred ldquolies about like a loaded weapon ready for the hand of
130 R v Clayton [2007] 2 SCR 725 at 742
54
any authority that can bring forward a plausible claim of an urgent needrdquo131 The need to
protect the public must be balanced with the requirement to preserve fundamental rights
and freedoms
Yet at the same time ldquoCanadians are entitled to demand the best public order policing
possible from their governmentrdquo132 There is no question that we live in a different world
post 911 We live in difficult times with constant threats both domestically and from
abroad The police clearly need to be given adequate powers to carry out their duties
The police use their expertise on a daily basis to assess the powers they require In
instances when they take action that exceeds their powers their actions are examined by
various mandated bodies This process I believe results in the proper balance between
police powers and individual rights and freedoms Therefore any legislation that purports
to grant special police powers must be specific and direct and developed in consultation
with stakeholders and tested through thorough debate in our transparent democratic
system
131 Korematsu v United States 323 US 214 (1944)132 Supra note 26 p 8
55
family members The RCMPrsquos duty to protect internationally protected persons is also
found in s 6(1) of the Security Offences Act51
In addition Canada is a signatory of the United Nations Convention on the Prevention
and Punishment of Crimes against Internationally Protected Persons including
Diplomatic Agents52 This Convention provides that the Government of Canada must
protect visiting heads of state or government foreign ministers representatives or
officials of a state or any official or other agent of an international organization of an
intergovernmental character and the family members that accompany him or her The
RCMP has the responsibility to carry out these security measures
Pursuant to s 101(1) of the FMIOA ldquoThe Royal Canadian Mounted Police has the
primary responsibility to ensure the security for the proper functioning of any
intergovernmental conference in which two or more states participate that is attended by
persons granted privileges and immunities under this Act and to which an order made or
continued under this Act appliesrdquo
The powers to carry out this mandate are found in s 101(2) of the FMIOA ldquothe Royal
Canadian Mounted Police may take appropriate measures including controlling limiting
or prohibiting access to any area to the extent and in a manner that is reasonable in the
circumstancesrdquo It is noteworthy that the FMIOA has legislated the same powers
provided to the police under common law and statute
In order to trigger the RCMP powers described in s 101 the Governor in Council on the
51 RSC 1985 c S-752 UNGA Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons including Diplomatic Agents 20 February 1977 UN Doc I-15410
28
recommendation of the Minister of Foreign Affairs and pursuant to s 5 of the FMIOA
made the G8 Summit Privileges and Immunities Order 201053 on December 10 2009
This order was repealed and a subsequent order54 was made on January 13 2010 A
similar order55 for the G20 Summit was made on March 11 201056
Therefore during the G20 the RCMP had the specific statutory power to limit or
prohibit access to any area and to any extent as long as the measures were appropriate
and done in a manner that was reasonable in the circumstances ldquoThe RCMP may secure
the perimeter of the security zone on land with fencing and restrict access to this zone
through the use of checkpoints and other measuresrdquo57
Though not invoked during the G20 s 101(4) of the FMIOA provides that arrangements
can be entered into with a province concerning the responsibilities of members of the
RCMP and members of the provincial and municipal police forces with respect to
ensuring the security for the proper functioning of an intergovernmental conference No
information was provided to me as to why such an arrangement was not entered into for
the G20
These intergovernmental security provisions of the FMIOA were enacted just prior to the
G8 being held in Kananaskis Alberta in 2002 In light of violent protests at international
events and the 911 terrorist attacks in the United States the Federal Government
53 SOR2009-33654 SOR2010-1355 SOR2010-6256 Supra note 17 ldquoUpon such an Order being made the RCMP in co-operation and collaboration with other police forces becomes impressed with the primary responsibility of ensuring not only the protection of the IPPs but also ensuring lsquosecurity for the proper functioningrsquo of the intergovernmental conference To that end the FMIOA provides that the lsquoappropriate measures including controlling limiting or prohibiting access to any area to the extent and in a manner that is reasonable in the circumstancesrsquo may be takenrdquo57 Ibid
29
considered it timely ldquoto clarify in statute the present common law authority for police to
provide security and protection for high profile international eventsrdquo58 At such events it
was intended that ldquothe RCMP is the lead to make sure that security is providedrdquo59
Given that it was clearly the intention of the Federal Government to have the RCMP as
the lead police force at these international events consideration should be given to
expand the use of the FMIOA to cover all large scale international events such as the
Olympics the Pan American Games and international trade fairs as these events are
routinely attended by heads of state and senior government officials Most recently
Vancouver held the 2010 Olympic and Paralympic Winter Games60 Though federal and
municipal legislation were passed to assist in securing the Games expansion and
application of the FMIOA would have been a better approach The RCMP as the national
police force ought to be in charge pursuant to their authority under the FMIOA
4 Emergency Legislation
Through my consultations with the parties listed in Appendix 2 I heard that while we are
not in a time of war as in 1939 when the PWPA was enacted we live in an age of
international and local terrorism threats Our democratic society must be vigilant in
58 Canada House of Commons Debates 37th Parl 1st Sess No 93 (5 October 2001) at 100059 Canada House of Commons Standing Committee on Public Safety and National Security 40th Parl 3rd
Sess Evidence (25 October 2010)60 In anticipation of this event the Governor General in Council on the recommendation of the Minister of Transport pursuant to the Aeronautics Act (RSC 1985 c A-2) and the Canadian Air Transport Security Authority Act (SC 2002 c 9 s 2) passed the Vancouver 2010 Aviation Security Regulations (SOR2009-298) The purpose of the regulations was to enhance aviation security during the Games The Regulation provided for extra security and extra authorized means to conduct screenings In addition the Vancouver City Council passed the very lengthy By-law No 9962 known as the ldquoVancouver 2010 Olympic and Paralympic Winter Games By-Lawrdquo Specific security measures to be employed at a city live site (described thoroughly in a Schedule to the By-Law) that were enabled by this By-Law included The installation and monitoring of airport style and other security measures including magnetometers and X-ray machines the installation and monitoring of closed circuit television cameras the searching of any person who wished to enter on to a city live site and any bag luggage or other container carried by such person and the prohibiting of access to or removal from a city live site any person who refused to submit to a search
30
maintaining a proper level of security while recognizing that democratic values and
security issues can conflict where public order is at issue It is important to highlight that
provincial legislation exists dealing with both terrorism threats and emergency situations
I have been informed that federal and provincial counter-terrorism plans exist that
address preventing and responding to acts of terrorism
The Police Services Act regulations mandate police forces to establish procedures
consistent with federal and provincial counter-terrorism plans61 and to have policies with
respect to counter-terrorism62 In addition the Emergency Management and Civil
Protection Act allows for orders to be made in situations specifically designated an
ldquoemergencyrdquo63 by the Lieutenant Governor in Council or the Premier that regulate or
prohibit travel and movement to from or within any specified area64 Therefore the
PWPA is not needed to deal with these emergency situations as specific more recent
emergency legislation is in place for that very purpose
C Gaps in Canadian Police Powers
The Ministry of Community Safety and Correctional Services provided me with an
interesting article published in 2010 entitled ldquoThe Gap in Canadian Police Powers
61 Adequacy and Effectiveness of Police Services O Reg 399 s 2862 Ibid s 2963 Section 1 of the Emergency Management and Civil Protection Act defines an ldquoemergencyrdquo as ldquoemergencyrdquo means a situation or an impending situation that constitutes a danger of major proportions that could result in serious harm to persons or substantial damage to property and that is caused by the forces of nature a disease or other health risk an accident or an act whether intentional or otherwise (ldquosituation drsquourgencerdquo)64 RSO 1990 c E9 s 702(4)
31
Canada needs lsquoPublic Order Policingrsquo Legislationrdquo and co-authored by Wesley Pue and
Robert Diab65
This article was prompted by the debate over the cost nature and extent of security to be
employed at the Vancouver 2010 Winter Olympics The authors criticized the fact that
policing authorities in Canada ldquolack specific statutory authorization to take measures
commonly thought necessary to their missionrdquo66 These measures included security
fences in public areas designated protest areas restricted access to public space police
surveillance and searches without cause
The authors recognize that such powers may be necessary but note that ldquono legislature
has ever expressly conferred such powers on policing authorities outside the context of
international intergovernmental conferences Nor does the common law accord such
powers to state officials on its ownrdquo67 I respectfully disagree with this latter statement
It is my view the police have powers pursuant to the common law and statute as I have
discussed in the preceding section
The authors referred to R v Knowlton68 which I have previously discussed While the
authors give Knowlton a very narrow interpretation stating that ldquoits binding principle is a
good deal narrower than the words taken out of context might suggestrdquo69 I however am
of the view that the decision supports the proposition that police have a broad range of
65 Wesley Pue and Robert Diab ldquoThe Gap In Canadian Police Powers Canada Needs lsquoPublic Order Policingrsquo Legislationrdquo (2010) 28 Windsor Rev Legal Soc Issues 87 Wesley Pue is a professor of legal history at the University of British Columbia and Robert Diab is a PhD candidate at the UBC Faculty of Law66 Ibid p 8867 Ibid68 Supra note 3469 Supra note 65 p 92
32
responsibilities with deep historical roots in the common law and codified in statute a
position shared by the Federal Government when it introduced amendments to the
FMIOA The actions of the police in Knowlton were necessarily incidental to their
common law police duties and powers
The authors conclude that this ldquoauthority of police to create zones of exclusion either as
an incident of the general and ancient duties of constableshelliphas never been established in
the courtsrdquo70 I am of the view however that the role of the police in establishing
security zones relating to a crime a serious accident or other emergency is a routine and
well-accepted use of police powers pursuant to their common law and statutory duties I
am not suggesting that this common law authority permits the police to establish security
zones ldquofor the proper functioning of any intergovernmental conference in which two or
more states participaterdquo71 larger than necessary to fulfill their purpose The FMIOA as
amended in 2002 provides the RCMP with ldquoprimary responsibility to ensure the security
for the proper functioning of the intergovernmental conferencerdquo72 It is interesting
however that when the Federal Government was enacting this specific authority the
legislative debates indicated that the government was merely clarifying ldquoin statute the
present common law authority for police to provide security and protection for high
profile international eventsrdquo73
Security perimeters are routinely erected by police in the context of the commission of a
crime motor vehicle and other accidents as well as the Santa Claus parade and other
70 Ibid p 9671 Supra note 8 s 101(1)72 Ibid73 Supra note 58
33
parades It would in my view be quite impractical and unnecessary to legislate an
extensive code of police powers given their common law and statutory responsibilities to
generally maintain public order It is not advisable in my opinion to be prescriptive in
any way regarding what actions the police can take since they must assess what the
situation warrants while at the same time considering individual rights and freedoms
The details of any police response to an emergency must be tailored to the exigencies
related to the situation
The police clearly have common law and statutory authority to conduct warrantless
searches in specific situations (ldquoin exigent circumstancesrdquo)74 However when
warrantless searches must be carried out on a regular routine basis the police are acting
more like full time security guards and there should be specific statutory authority
provided to give such powers
I certainly accept the general proposition the authors assert that the mobility rights of
citizens should not be unreasonably or unfairly dealt with However one only need be
aware of the massive amount of construction taking place on the streets of Toronto as this
Report is being written to appreciate that it is not always reasonable to expect that ldquothe
rights of businesses homeowners and ordinary citizens to go about their routine
activities without interruptionrdquo75 will go unhindered While generally desirable it cannot
be legally guaranteed At the same time the authors do concede that ldquoimportant as they
74 Supra note 42 s 4871175 Supra note 65 p 89
34
are the rights of assembly movement and protest are not unqualified They can ndash and
should ndash be balanced against other important public needsrdquo76
In my view public policing at times requires innovation as it often benefits from
creative problem solving If police abuse their common law powers related to ldquopublic
order policingrdquo they are accountable to a multiplicity of authorities and the rule of law
most particularly the Charter The legal rights outlined in the Charter such as ldquothe
principles of fundamental justicerdquo77 security ldquoagainst unreasonable search and seizurerdquo78
and ldquothe right not to be arbitrarily detained or imprisonedrdquo79 are described very
generally However they were chosen deliberately as it was recognized that in each case
there is an inherent tension between imposing security measures and fundamental rights
and freedoms Determining which is paramount will be based on the facts of each case
76 Ibid p 9177 Canadian Charter of Rights and Freedoms s 7 Part I of the Constitution Act 1982 being Schedule B to the Canada Act 1982 (UK) 1982 c 1178 Ibid s 879 Ibid s 9
35
SECTION 5 LEGAL ANALYSIS OF THE PUBLIC WORKS PROTECTION ACT
A Legal Analysis of the Legislation
Many stakeholders have questioned the constitutional validity of the PWPA and O Reg
23310 The Ontario Ombudsman seriously questioned whether O Reg 23310 could
pass ldquoconstitutional musterrdquo80 The CCLA suggested that the broad police powers
granted under the PWPA were inconsistent with the Charter81
To the same effect were comments made by Premier Dalton McGuinty who described
the PWPA as ldquoan archaic law that was used to undermine Torontoniansrsquo civil rights
during the G20rdquo82 He elaborated83
The issue is whether itrsquos appropriate given our present-day values and given an old law which I am confident doesnrsquot strike the balance that you and I would want today in terms of public safety and individual freedom of expressionhellipWhen you start talking about civil rights individual freedoms yoursquore talking about those things that in fact define us as a free and democratic societyhellipItrsquos something that is real and meaningful and important to all of us
The Terms of Reference for this Review do not require that I conduct a constitutional
analysis of the PWPA I have however been asked to consider areas for reform and if
appropriate make specific recommendations for amendment or repeal This does require
that I therefore consider whether the legislation may be vulnerable to constitutional
challenge
Section 2(b) of the Charter guarantees everyone the fundamental freedom of expression
The definition of ldquoexpressionrdquo has been interpreted broadly ldquoActivity is expressive if it
80 Supra note 32 at para 23381 Supra note 26 p 982 Robert Benzie and Rob Ferguson ldquoMcGuinty shifts focus to fixing G20 lawrdquo Toronto Star (10 December 2010) online thestarcom lthttpwwwthestarcomnewscanadaarticle905436--mcguinty-shifts-focus-to-fixing-g20-lawgt 83 Ibid
36
attempts to convey meaningrdquo84 While freedom of expression is not absolute there is
very little that is not considered expression However expression that advocates violence
is not protected under s 2(b)85
The Supreme Court of Canada in Committee for the Commonwealth of Canada v
Canada held that s 2(b) ldquodoes not encompass the right to use any and all government
property for purposes of disseminating onersquos views on public matters but I have no doubt
that it does include the right to use for that purpose streets and parks which are dedicated
to the use of the public subject no doubt to reasonable regulation to ensure their
continued use for the purposes to which they are dedicatedrdquo86 It seems clear that
protesting in public streets is a form of expression protected by s 2(b) Protesting at an
intergovernmental conference is clearly expressive in nature
In challenges alleging that a statute contravenes s 2(b) of the Charter a court would
examine whether the purpose or effect of a law contravenes section 2(b)87 There is no
reason to suggest that the purpose of the PWPA was to infringe the freedom of
expression The purpose of the PWPA is to protect important public infrastructures A
court would then have to consider whether the effect of the PWPA may have resulted in
an infringement of freedom of expression
O Reg 23310 defined significant portions of downtown Toronto as a ldquopublic workrdquo
Section 3(c) of the PWPA allows peace officers to refuse entry into public works which
therefore limits the areas in which protesters could express themselves By creating the
84 Irwin Toy Ltd v Queacutebec (Attorney General) [1989] 1 SCR 927 at 96885 Ibid at 97086 [1991] 1 SCR 139 at 165-16687 Peter Hogg Constitutional Law of Canada loose-leaf (consulted on 7 January 2011) 5th ed (Toronto Thomson Reuters Canada Limited 2007) at 43-6
37
relatively large security perimeter designated by the regulation individuals may allege
they were not permitted to communicate directly with those they were protesting against
Furthermore individuals could not communicate in public places such as public streets
where the right to freedom of expression has previously been found to exist88
Commissioner Ted Hughes completed an interim report following a public hearing into
the complaints regarding events that took place with respect to the Asia Pacific Economic
Cooperation (APEC) Conference in Vancouver British Columbia in November 1997
Commissioner Hughes recommended that generous opportunity should be afforded to
peaceful protesters to be seen in their protest activities by guests at the event89
Section 7 of the Charter provides that ldquoEveryone has the right to life liberty and security
of the person and the right not to be deprived thereof except in accordance with the
principles of fundamental justicerdquo The PWPA raises issues regarding the liberty and
security of the person in providing for warrantless searches and stopping for
identification Furthermore vague laws offend two fundamental values of our legal
system90 Firstly individuals are not provided with sufficient guidance as to what
behaviour a law prohibits Secondly those in charge of enforcing the law are not
provided with clear guidance as to how to enforce it A vague law can lead to inconsistent
and arbitrary enforcement91
88 Supra note 86 89 Canada Commission for Public Complaints Against the RCMP APEC ndash Commission Interim Report (31 July 2001) at s 3111 (Commissioner Ted Hughes QC) online Commission for Public Complaints Against the RCMP lthttpwwwcpc-cppgccaprrrepphrapecapec-31-engaspxgt90 Supra note 87 at 47-60 91 ldquoA vague provision does not provide an adequate basis for legal debate that is for reaching a conclusion as to its meaning by reasoned analysis applying legal criteria It does not sufficiently delineate any area of risk and thus can provide neither fair notice to the citizen nor a limitation of enforcement discretion Such
38
As described by Professor Hogg92
The requirement that any limit on rights be prescribed by law reflects two values that are basic to constitutionalism or the rule of law First in order to preclude arbitrary and discriminatory action by government officials all official action in derogation of rights must be authorized by law Secondly citizens must have reasonable opportunity to know what is prohibited so that they can act accordingly Both these values are satisfied by a law that fulfils two requirements (1) the law must be adequately accessible to the public and (2) the law must be formulated with sufficient precision to enable people to regulate their conduct by it and to provide guidance to those who apply the law
As I stated earlier the phrase ldquoany approach theretordquo contained in s 3(a) of the PWPA is
potentially vague No criteria are provided to assist in determining when one is on ldquoany
approach theretordquo A phrase such as ldquoany approach theretordquo is subject to many potential
interpretations It is arguable that this language does not provide reasonable guidance for
individuals to obey the law and for the law to be consistently enforced
Section 8 of the Charter provides that ldquoEveryone has the right to be secure against
unreasonable search or seizurerdquo A warrantless search or seizure is only reasonable if the
search was authorized by law the law itself is reasonable and the manner in which the
search carried out was reasonable93 The fact that no reasonable or probable suspicions
are needed to carry out a search pursuant to s 3(b) of the PWPA raises some issues The
only prerequisite to such a search is that the person or vehicle being subjected to a search
is entering or attempting to enter a public work
a provision is not intelligible to use the terminology of previous decisions of this Court and therefore it fails to give sufficient indications that could fuel a legal debaterdquo (R v Nova Scotia Pharmaceutical Society [1992] 2 SCR 606 at 639-640) 92 Supra note 87 at 38-1293 R v Nolet [2010] SCJ No 24 at para 21
39
Whether the PWPArsquos s 3(b) authority to undertake warrantless searches is ldquoreasonablerdquo
depends on the reasonableness of the impact on the subject of the search ldquoThe
individuals reasonable expectation of privacy must of course be balanced against the
public interest in effective law enforcementrdquo94 It is harder to justify a warrantless search
where the reasonable expectation of privacy is higher For example interference with
bodily integrity will raise the standard of reasonableness Conversely in situations where
people expect to have a lower level of privacy the standard to prove reasonableness is
lower
One rightfully has some expectation of privacy when in public but it does not rise to the
level of privacy that one expects in onersquos home The expectation of privacy further
decreases when one attempts to enter a ldquopublic workrdquo especially in the context of a
secured barrier to an intergovernmental conference
Section 9 of the Charter provides that ldquoEveryone has the right not to be arbitrarily
detained or imprisonedrdquo95 Under s 3(a) of the PWPA a person entering or attempting to
enter or approach a public work must provide his or her name and address and state the
purpose for which he or she desires to enter the public work In order for a guard or
peace officer to carry out this duty the guard or peace officer may ldquostoprdquo the person from
further approaching or entering the public work and the person is not permitted under the
statute to decide not to enter By so doing it is arguable the guard or peace officer has
assumed control over the movement of the individual by a demand or direction The
94 R v Rao [1984] OJ No 3180 at para 79 (CA)95 ldquoDetention under s 9hellipof the Charter refers to a suspension of the individualrsquos liberty interest by a significant physical or psychological restraint Psychological detention is established either where the individual has a legal obligation to comply with the restrictive request or demand or a reasonable person would conclude by reason of the state conduct that he or she had no choice but to complyrdquo (R v Grant [2009] SCJ No 32 at para 44)
40
PWPA provides for a significant legal consequence if the demand or direction is not
followed since ldquoEvery person who neglects or refuses to comply with a request or
direction made under this Act by a guard or peace officer and every person found upon a
public work or any approach thereto without lawful authority the proof whereof lies on
him or her is guilty of an offence and on conviction is liable to a fine of not more than
$500 or to imprisonment for a term of not more than two months or to bothrdquo96
Pursuant to s 3(b) of the PWPA a guard or peace officer may search any person entering
or attempting to enter a public work These searches would necessitate the detention of a
person If a guard or peace officer performs such a search he or she has taken control
over the movement of the person by a demand or direction The same serious legal
consequence results from failing to obey this demand or direction as that which results
from failing to obey the demand or direction pursuant to s 3(a) of the PWPA As a
result ldquodetentionsrdquo could occur pursuant to both s 3(a) and s 3(b) of the PWPA
The question that would need to be addressed in any challenge to the PWPA is whether
the detentions permitted by the PWPA are arbitrary in nature The use of the term ldquoany
approach theretordquo is vague and imprecise A person could be deemed to be on ldquoany
approach theretordquo a great distance from the entrance of a public work and their detention
might very well be arbitrary In addition the fact that the guards and peace officers
determine the boundaries of the ldquoapproachesrdquo which cannot be contested seems
arbitrary as well as who they chose to search
96 It should be noted that not all communications with state authorities and police officers will amount to a detention The question is whether a person may reasonably believe that he or she is free to refuse to comply
41
Section 11(d) of the Charter provides that ldquoAny person charged with an offence has the
right to be presumed innocent until proven guilty according to law in a fair and public
hearing by an independent and impartial tribunalrdquo This requires that the Crown have the
burden of proving the guilt of an individual charged with an offence97 Provisions that
place the burden on the accused to disprove on the balance of probabilities an essential
element of an offence raises s 11(d) concerns because convictions would be possible
even if reasonable doubt existed98 The presumption of innocence is not only infringed
upon by a requirement that an accused disprove an essential element of an offence but
also any requirement on an accused to prove a fact on the balance of probabilities to
avoid conviction
Section 5(1) of the PWPA states that ldquoEvery person who neglects or refuses to comply
with a request or direction made under this Act by a guard or peace officer and every
person found upon a public work or any approach thereto without lawful authority the
proof whereof lies on him or her is guilty of an offence and on conviction is liable to a
fine of not more than $500 or to imprisonment for a term of not more than two months or
to bothrdquo For the offence of being found upon a public work or on any approach to a
public work without lawful authority the burden of proof has been ldquoshiftedrdquo from the
Crown to the accused to prove lawful authority
As the foregoing analysis reveals there are certainly many concerns that arise when one
places the PWPA under the lens of the Charter However the rights and freedoms
provided by the Charter are not absolute They are ldquosubject only to such reasonable
97 R v Oakes [1986] 1 SCR 10398 Ibid at 132
42
limits prescribed by law as can be demonstrably justified in a free and democratic
societyrdquo99
In assessing whether a law which infringes the Charter is saved by s 1 a court examines
both the object of the law and the measures taken to achieve that objective A lawrsquos
objective achieves the status of being sufficiently important to justify overriding a
Charter right only when it is consistent with the values of a free and democratic society
The objective must relate to pressing and substantial concerns and not concerns that are
trivial and must be focussed on ldquothe realization of collective goals of fundamental
importancerdquo100 The measures adopted must be ldquorationally connectedrdquo to the objective of
the law101 The measures ldquoshould impair lsquoas little as possiblersquo the right or freedom in
questionrdquo102 Furthermore there must be ldquoa proportionality between the effects of the
measures which are responsible for limiting the Charter right or freedom and the
objective which has been identified as of lsquosufficient importancersquordquo103
An issue that may affect whether the potential limitation on rights and freedoms of the
PWPA and O Reg 23310 were ldquoprescribed by lawrdquo is whether the regulation was
adequately accessible to the public The Ontario Ombudsman the CCLA and the Ontario
Bar Association (ldquoOBArdquo) all noted a lack of notice regarding O Reg 23310 and its
effects prior to and during the G20 While the text of the regulation was available prior
99 Charter s 1 The Superior Court of Quebec decision of Tremblay v Queacutebec (Attorney General) [2001] JQ No 1504 (CS) involved an interim injunction brought by an applicant who was denied entry into the secured perimeter during the 2001 Summit of the Americas in Queacutebec City The applicant sought an injunction to either eliminate the security barrier or to be given a pass to let him within the secured perimeter Even though the Court held that the erection of the security zone violated the applicantrsquos right to freedom of expression and peaceful assembly The court held that the infringement was ldquodemonstrably justified in a free and democratic societyrdquo100 Supra note 97 at 136101 Ibid at 139102 Ibid103 Ibid
43
to the G20 it was only available on a website not frequently accessed by the public
Since O Reg 23310 was not published in The Ontario Gazette until after it was
revoked it may be that the regulation was not adequately accessible to the public
Reverse onus offences have been found to be ldquorationally connectedrdquo when there is plainly
a rational connection between the proven fact and the fact to be presumed Reverse
onuses have also been upheld when the burden placed on the Crown would be virtually
impossible to meet (such as proving sanity)104 Even if the accused only has the burden
of disproving the fact that heshe did not have lawful authority to be in a public work or
on an approach thereto there may not be a rational connection between the proven fact
and the fact to be presumed
The history of threats and violence at previous intergovernmental conferences
demonstrated that the protection of G20 participants was a pressing and substantial
concern However given the broadness of the PWPA every exercise of it raises the
potential for Charter scrutiny
Recommendation
Given the public policy considerations I have raised regarding the PWPA and Charter
concerns that could arise I recommend that the PWPA be repealed after the Province has
considered potential policy and security gaps as a result of its repeal
B Other uses of the Public Works Protection Act
It appears from my consultations with stakeholder groups that if the PWPA is repealed
104 R v Chaulk [1990] 3 SCR 1303 at 1340
44
there are two areas which may require legislation to provide specific peace officer
powers These two areas are court security and the protection of nuclear power facilities
and other power generating infrastructures
1 Court Security
During my decade as Ontariorsquos Attorney General (1975 to 1985) there were three
murders in provincial courthouses as well as many threats to members of courthouse staff
and others As violent acts in courthouses can be anticipated courtroom security is often
required
Individuals are compelled to go to court for a variety of reasons such as appearing as an
accused as a witness or for jury duty To provide protection to those who work there or
are compelled to attend an adequate level of court security may require a search without
warrant of each and every individual who seeks to enter a courthouse It is not reasonable
to require prior judicial authorization for each search that takes place
The courts have considered the constitutionality of these provisions of the PWPA in
conjunction with section 137 of the Ontario Police Services Act in the context of court
security
Section 137 of the Ontario Police Services Act imposes a responsibility on municipal
police services boards to secure the premises where court proceedings are conducted and
includes
1 Ensuring the security of judges and of persons taking part in or attending proceedings
45
2 During the hours when judges and members of the public are normally present ensuring the security of the premises
3 Ensuring the secure custody of persons in custody who are on or about the premises including persons taken into custody at proceedings
4 Determining appropriate levels of security for the purposes of paragraphs 1 2 and 3
In R v Campanella105 Ms Campanella was attending the John Sopinka Courthouse in
Hamilton At the courthouse there were signs posted stating that those who entered
would be searched for weapons When Ms Campanellarsquos bag was searched marijuana
was found and she was charged with the possession of marijuana She argued that her s
8 Charter protection against unreasonable search and seizure had been violated and the
marijuana discovered during the search should therefore be excluded as evidence The
trial judge and the summary convictions appeal court rejected the section 8 Charter
argument and the appellant appealed to the Ontario Court of Appeal
The Ontario Court of Appeal agreed that ldquogiven the importance of the government
objective and the context in which these searches take place it is reasonable to authorize
warrantless searches of those entering courthouse facilitiesrdquo106 The Court stated ldquothe
only effective way to diminish the risk in a large courthouse is to subject everyone
without prior security clearance to some kind of inspection I can see no other feasible
means of achieving the aimrdquo107
The Court also pointed out the concern relating to the erosion of the benefits and
105 [2002] OJ No 5104 (SCJ) affrsquod [2005] OJ No 1345 (CA) [ldquoCampanellardquo]106 R v Campanella [2005] OJ No 1345 at para 17 (CA)107 Ibid at para 19
46
protections conferred by s 8 of the Charter108
I am sensitive to the concern that we should not erode the benefits and protections of s 8 by gradually sanctioning ever-greater intrusions into privacy because of unfounded fears We should not lightly accept that searches in public places are justified solely because people have become used to them and expect them However the record in this case establishes the justification for the kinds of searches carried out in this case
Ultimately the appeal was dismissed and s 137 of the Police Services Act and s 3(b) of
the PWPA) were held to comply with s 8 of the Charter109
In its consultations with me the OBA similarly stated that the existing nature of court
security is necessary and is generally ldquowell toleratedrdquo At the same time however it
submits that the security regime should not be ldquoshoehornedrdquo into the PWPA regime and
that it would be preferable to provide a legislative framework tailored for the specific
security requirements While the PWPA has been relied upon as support for the exercise
of powers by the police in providing court security the OBA submits that the PWPArsquos
ldquosingle security schemerdquo which declares something a ldquopublic workrdquo is an ldquoawkward
blunt instrument in a world where more specialized tools are necessaryrdquo When
warrantless searches are being done on a routine basis it is advisable to have specific
legislation providing peace officers with such power
Recommendation
Court security legislation is currently in place in many jurisdictions across Canada and
contain provisions that permit warrantless searches of persons wanting to access a
108 Ibid at para 25109 The Court in R v SS [2005] OJ No 5002 (SCJ) agreed with the findings and rationale of the Court of Appeal in Campanella
47
courthouse The constitutional validity of such legislation in Manitoba was upheld by that
provincersquos highest court110
Given the ongoing need for warrantless searches at courthouses the Province of Ontario
should consider specific court security legislation in Ontario to support the security
measures in our courthouses if the PWPA is to be repealed taking into consideration the
responsibilities of the municipal police services boards provided in s 137 of the Police
Services Act This legislation should only be passed after proper notice consultation and
legislative debate
2 Power Generating Infrastructures
It is clear from the submissions that I received from representatives of OPG and the
Canadian Nuclear Safety Commission (ldquoCNSCrdquo) that the PWPA currently plays a role in
providing security officers with the powers to secure power generating infrastructures
including the ability to carry firearms and the ability to stop and require identification
from those in proximity to those nuclear plants
Security is of the utmost importance in protecting a nuclear power plant Members of the
public do not need to access a nuclear or similar power facility unless employed at the
facility or carrying out work for the facility111
The security of areas within nuclear power plants is governed by the Nuclear Security
110 R v Lindsay [2004] MJ No 380 (CA) 111 Though the discussion focuses on nuclear power plants I have been informed that other power generating infrastructures use the PWPA to designate their security officers as guards As a result if the PWPA is repealed it will be necessary to broaden the consultations in relation to these other power generating infrastructures
48
Regulations112 Every nuclear power plant must be located within a ldquoprotected areardquo113
This protected area is the area within a fenced perimeter which is alarmed and
continually patrolled This area must be equipped with devices that employ two
independent systems to detect intrusion into the area114 The Nuclear Security
Regulations also provide detailed specifications for the barrier which must enclose the
protected area115 In addition licensees must ldquoidentify all vital areas and implement
physical protection measures ndash including access control and measures designed to delay
unauthorized accessrdquo116
The Nuclear Security Regulations also provide detailed provisions regarding entry into
protected areas No person can ldquoenter a protected area without physical proof of the
recorded authorization of the licenseerdquo117 Further to this on entry into a protected area
ldquothat personrsquos identity shall be verified by two separate personnel identity verification
systems one of which is an access card reader and the other of which is a biometric
personnel identity verification devicerdquo118 Licensees must also ldquoensure that vehicle
portals are used for the entry and exit of land vehicles into and from a protected areardquo119
Physical protection measures are also required to reduce the chance of a forced land
vehicle entry into a protected area120
The power to conduct searches upon entry to a protected area is also provided by the
112 SOR2000-209 113 Ibid s 8114 Ibid s 11(a)(i)115 Ibid s 9116 Ibid s 141117 Ibid s 17(1)118 Ibid s 171119 Ibid s 91(1)120 Ibid s 91(4)
49
Nuclear Security Regulations Signs must be posted that are visible to people about to
enter the protected area stating that they must allow a nuclear security officer (ldquoNSOrdquo) to
ldquosearch them and everything in their possession including any land vehicle for weapons
and explosive substancesrdquo121 In addition when leaving the protected area people must
allow NSOs to ldquosearch them and everything in their possession including any land
vehicle for Category I II or III nuclear materialrdquo122 People are not permitted to enter or
leave a protected area unless these searches are carried out123 The Nuclear Security
Regulations provide for the method of search including ldquoa hand-held scanner a walk-
through scanner or any similar devicerdquo124 In addition if an NSO determines it
necessary a frisk search can be carried out by a person of the same sex125
I have been informed that the area outside of but adjacent to the ldquoprotected areardquo is
referred to as the ldquocontrolled areardquo This area includes roadways and waterways within
the nuclear facilityrsquos property boundaries adjacent to or in close proximity to the nuclear
power plantrsquos protected area and may be generally accessible to the public
As a result of the September 11 2001 terrorist attacks the Nuclear Security Regulations
were amended to require that high security nuclear facilities maintain an on-site armed
Nuclear Response Force (ldquoNRFrdquo)126 The NRF is composed of specialized NSOs
Section 32 of the Nuclear Security Regulations requires the NRF to be capable of making
an effective intervention taking into account the threat
121 Ibid s 27(1)(a)122 Ibid s 27(1)(b)123 Ibid s 27(2)124 Ibid s 27(5)(a)125 Ibid s 27(5)(b)126 Ibid s 32
50
Members of the NRF are mandated by the Nuclear Security Regulations to be ldquotrained in
the use of firearms authorized to carry firearms in Canada and qualified to use themrdquo127
However to satisfy this requirement the NRF resorts to the PWPA since the federal
regulations do not authorize the NRF to carry firearms without a licence However
under s 2(1) of the PWPA NSOs are designated as ldquoguardsrdquo with the powers of a peace
officer most significantly to carry and use firearms without having to be licensed128
Such a designation also enables the OPG to acquire and dispose of firearms
In the consultations I had with the OPG and the CNSC they advised me that NSOs
receive training equivalent to Canadian police standards and that NRF officers receive
training equivalent to federal and provincial police tactical team requirements
Another aspect of the PWPA used to secure nuclear power plants relates to powers
exercised by NSOs in ldquocontrolled areasrdquo The federal regulations do not provide the
NSOs with any power to demand identification within this area However pursuant to
the PWPA as appointed ldquoguardsrdquo the NSOs have the power to demand identity
verification in the controlled area They also have the authority to arrest anyone who
obstructs NSOs in the performance of their duties under the PWPA
In addition to using the PWPA to secure the controlled areas I have been advised by the
OPG that NSOs use powers pursuant to the PWPA to secure areas within 100 metres of a
nuclear facilityrsquos property line immediately adjacent to the controlled area These powers
are exercised under the broad language of the PWPA regarding ldquoapproaches to public
127 Ibid s 1 (on-site nuclear response force definition)128 Section 11707 of the Criminal Code exempts peace officers from licensing requirements for possessing firearms and other prohibited and restricted weapons
51
worksrdquo This is an illustration of the problem with the vagueness of this language in the
legislation As these powers are exercised on public land they could be challenged as a
potential infringement on individual rights and freedoms However I have been advised
that there have been no such incidents to date The need to ensure the security of these
facilities must be taken into the balance
NSOs must be able to monitor and control access to the controlled areas and areas close
to a nuclear power plantrsquos property line This provides for a more secure perimeter
around these facilities They need authority to challenge individuals acting in a suspicious
manner or conducting surveillance of nuclear facilities The OPG has informed me that
areas outside a nuclear facilityrsquos property line immediately adjacent to the controlled
area are still close enough to take advantage of the short distance to conduct intelligence
using high-powered surveillance equipment These nuclear power plants are not located
on isolated islands and are therefore vulnerable Both the Pickering Nuclear Generating
Station and the Darlington Nuclear Generating Station operate within major urban areas
being 30 km and 60 km east of downtown Toronto respectively I am advised that
previous events such as ldquoThe Toronto 18rdquo129 have shown that those intent on targeting
vital infrastructure such as power generating facilities often use reconnaissance and
intelligence gathering as precursor tactics
Recommendation
If the PWPA is to be repealed it is imperative that those who secure our nuclear and
power generating facilities be given the requisite specific legislative powers to do so
129 See for example ldquoLast 2 Toronto 18 accused found guiltyrdquo CBC News (23 June 2010) online cbcca lthttpwwwcbccanewscanadatorontostory20100623toronto-18-verdicthtmlgt
52
The source for these powers should be set out in the federal Nuclear Security
Regulations However if this is not a desired option the Government of Ontario must
consider specific legislation setting out the specific powers required to properly secure
these facilities and the specific location in which these powers can be exercised Such
legislation should not be passed without proper notice consultation and legislative
debate
53
SECTION 6 CONCLUSION
The PWPA was enacted in 1939 to support the war effort At the time the protection of
Ontariorsquos hydroelectric facilities from sabotage was of particular concern Since then the
PWPA has been used to provide the legal foundation for the powers exercised by the
police in providing court security and even more recently by the OPG in securing
nuclear power facilities In June 2010 the PWPA was used to provide powers to secure
intergovernmental conferences The vagueness of the PWPA permits it to be used in
situations when it is arguably not necessary and potentially abusive In my view the
PWPA has been used for purposes beyond its original intent
The time for the PWPA seems to have passed If the Government of Ontario enacts as I
have suggested specific legislation to provide for courthouse security and power
generating infrastructure security it would appear that there is no longer a need for the
PWPA I am also mindful of the existence of counter-terrorism and emergencies
legislation to deal with these situations as they arise
ldquoIn determining the boundaries of police powers caution is required to ensure the proper
balance between preventing excessive intrusions on an individualrsquos liberty and privacy
and enabling the police to do what is reasonably necessary to perform their duties in
protecting the publicrdquo130 The overly broad and vague language of the PWPA does not
strike this required balance with individual rights and freedoms
The late Justice Jackson of the United States Supreme Court stated that every
emergency power once conferred ldquolies about like a loaded weapon ready for the hand of
130 R v Clayton [2007] 2 SCR 725 at 742
54
any authority that can bring forward a plausible claim of an urgent needrdquo131 The need to
protect the public must be balanced with the requirement to preserve fundamental rights
and freedoms
Yet at the same time ldquoCanadians are entitled to demand the best public order policing
possible from their governmentrdquo132 There is no question that we live in a different world
post 911 We live in difficult times with constant threats both domestically and from
abroad The police clearly need to be given adequate powers to carry out their duties
The police use their expertise on a daily basis to assess the powers they require In
instances when they take action that exceeds their powers their actions are examined by
various mandated bodies This process I believe results in the proper balance between
police powers and individual rights and freedoms Therefore any legislation that purports
to grant special police powers must be specific and direct and developed in consultation
with stakeholders and tested through thorough debate in our transparent democratic
system
131 Korematsu v United States 323 US 214 (1944)132 Supra note 26 p 8
55
recommendation of the Minister of Foreign Affairs and pursuant to s 5 of the FMIOA
made the G8 Summit Privileges and Immunities Order 201053 on December 10 2009
This order was repealed and a subsequent order54 was made on January 13 2010 A
similar order55 for the G20 Summit was made on March 11 201056
Therefore during the G20 the RCMP had the specific statutory power to limit or
prohibit access to any area and to any extent as long as the measures were appropriate
and done in a manner that was reasonable in the circumstances ldquoThe RCMP may secure
the perimeter of the security zone on land with fencing and restrict access to this zone
through the use of checkpoints and other measuresrdquo57
Though not invoked during the G20 s 101(4) of the FMIOA provides that arrangements
can be entered into with a province concerning the responsibilities of members of the
RCMP and members of the provincial and municipal police forces with respect to
ensuring the security for the proper functioning of an intergovernmental conference No
information was provided to me as to why such an arrangement was not entered into for
the G20
These intergovernmental security provisions of the FMIOA were enacted just prior to the
G8 being held in Kananaskis Alberta in 2002 In light of violent protests at international
events and the 911 terrorist attacks in the United States the Federal Government
53 SOR2009-33654 SOR2010-1355 SOR2010-6256 Supra note 17 ldquoUpon such an Order being made the RCMP in co-operation and collaboration with other police forces becomes impressed with the primary responsibility of ensuring not only the protection of the IPPs but also ensuring lsquosecurity for the proper functioningrsquo of the intergovernmental conference To that end the FMIOA provides that the lsquoappropriate measures including controlling limiting or prohibiting access to any area to the extent and in a manner that is reasonable in the circumstancesrsquo may be takenrdquo57 Ibid
29
considered it timely ldquoto clarify in statute the present common law authority for police to
provide security and protection for high profile international eventsrdquo58 At such events it
was intended that ldquothe RCMP is the lead to make sure that security is providedrdquo59
Given that it was clearly the intention of the Federal Government to have the RCMP as
the lead police force at these international events consideration should be given to
expand the use of the FMIOA to cover all large scale international events such as the
Olympics the Pan American Games and international trade fairs as these events are
routinely attended by heads of state and senior government officials Most recently
Vancouver held the 2010 Olympic and Paralympic Winter Games60 Though federal and
municipal legislation were passed to assist in securing the Games expansion and
application of the FMIOA would have been a better approach The RCMP as the national
police force ought to be in charge pursuant to their authority under the FMIOA
4 Emergency Legislation
Through my consultations with the parties listed in Appendix 2 I heard that while we are
not in a time of war as in 1939 when the PWPA was enacted we live in an age of
international and local terrorism threats Our democratic society must be vigilant in
58 Canada House of Commons Debates 37th Parl 1st Sess No 93 (5 October 2001) at 100059 Canada House of Commons Standing Committee on Public Safety and National Security 40th Parl 3rd
Sess Evidence (25 October 2010)60 In anticipation of this event the Governor General in Council on the recommendation of the Minister of Transport pursuant to the Aeronautics Act (RSC 1985 c A-2) and the Canadian Air Transport Security Authority Act (SC 2002 c 9 s 2) passed the Vancouver 2010 Aviation Security Regulations (SOR2009-298) The purpose of the regulations was to enhance aviation security during the Games The Regulation provided for extra security and extra authorized means to conduct screenings In addition the Vancouver City Council passed the very lengthy By-law No 9962 known as the ldquoVancouver 2010 Olympic and Paralympic Winter Games By-Lawrdquo Specific security measures to be employed at a city live site (described thoroughly in a Schedule to the By-Law) that were enabled by this By-Law included The installation and monitoring of airport style and other security measures including magnetometers and X-ray machines the installation and monitoring of closed circuit television cameras the searching of any person who wished to enter on to a city live site and any bag luggage or other container carried by such person and the prohibiting of access to or removal from a city live site any person who refused to submit to a search
30
maintaining a proper level of security while recognizing that democratic values and
security issues can conflict where public order is at issue It is important to highlight that
provincial legislation exists dealing with both terrorism threats and emergency situations
I have been informed that federal and provincial counter-terrorism plans exist that
address preventing and responding to acts of terrorism
The Police Services Act regulations mandate police forces to establish procedures
consistent with federal and provincial counter-terrorism plans61 and to have policies with
respect to counter-terrorism62 In addition the Emergency Management and Civil
Protection Act allows for orders to be made in situations specifically designated an
ldquoemergencyrdquo63 by the Lieutenant Governor in Council or the Premier that regulate or
prohibit travel and movement to from or within any specified area64 Therefore the
PWPA is not needed to deal with these emergency situations as specific more recent
emergency legislation is in place for that very purpose
C Gaps in Canadian Police Powers
The Ministry of Community Safety and Correctional Services provided me with an
interesting article published in 2010 entitled ldquoThe Gap in Canadian Police Powers
61 Adequacy and Effectiveness of Police Services O Reg 399 s 2862 Ibid s 2963 Section 1 of the Emergency Management and Civil Protection Act defines an ldquoemergencyrdquo as ldquoemergencyrdquo means a situation or an impending situation that constitutes a danger of major proportions that could result in serious harm to persons or substantial damage to property and that is caused by the forces of nature a disease or other health risk an accident or an act whether intentional or otherwise (ldquosituation drsquourgencerdquo)64 RSO 1990 c E9 s 702(4)
31
Canada needs lsquoPublic Order Policingrsquo Legislationrdquo and co-authored by Wesley Pue and
Robert Diab65
This article was prompted by the debate over the cost nature and extent of security to be
employed at the Vancouver 2010 Winter Olympics The authors criticized the fact that
policing authorities in Canada ldquolack specific statutory authorization to take measures
commonly thought necessary to their missionrdquo66 These measures included security
fences in public areas designated protest areas restricted access to public space police
surveillance and searches without cause
The authors recognize that such powers may be necessary but note that ldquono legislature
has ever expressly conferred such powers on policing authorities outside the context of
international intergovernmental conferences Nor does the common law accord such
powers to state officials on its ownrdquo67 I respectfully disagree with this latter statement
It is my view the police have powers pursuant to the common law and statute as I have
discussed in the preceding section
The authors referred to R v Knowlton68 which I have previously discussed While the
authors give Knowlton a very narrow interpretation stating that ldquoits binding principle is a
good deal narrower than the words taken out of context might suggestrdquo69 I however am
of the view that the decision supports the proposition that police have a broad range of
65 Wesley Pue and Robert Diab ldquoThe Gap In Canadian Police Powers Canada Needs lsquoPublic Order Policingrsquo Legislationrdquo (2010) 28 Windsor Rev Legal Soc Issues 87 Wesley Pue is a professor of legal history at the University of British Columbia and Robert Diab is a PhD candidate at the UBC Faculty of Law66 Ibid p 8867 Ibid68 Supra note 3469 Supra note 65 p 92
32
responsibilities with deep historical roots in the common law and codified in statute a
position shared by the Federal Government when it introduced amendments to the
FMIOA The actions of the police in Knowlton were necessarily incidental to their
common law police duties and powers
The authors conclude that this ldquoauthority of police to create zones of exclusion either as
an incident of the general and ancient duties of constableshelliphas never been established in
the courtsrdquo70 I am of the view however that the role of the police in establishing
security zones relating to a crime a serious accident or other emergency is a routine and
well-accepted use of police powers pursuant to their common law and statutory duties I
am not suggesting that this common law authority permits the police to establish security
zones ldquofor the proper functioning of any intergovernmental conference in which two or
more states participaterdquo71 larger than necessary to fulfill their purpose The FMIOA as
amended in 2002 provides the RCMP with ldquoprimary responsibility to ensure the security
for the proper functioning of the intergovernmental conferencerdquo72 It is interesting
however that when the Federal Government was enacting this specific authority the
legislative debates indicated that the government was merely clarifying ldquoin statute the
present common law authority for police to provide security and protection for high
profile international eventsrdquo73
Security perimeters are routinely erected by police in the context of the commission of a
crime motor vehicle and other accidents as well as the Santa Claus parade and other
70 Ibid p 9671 Supra note 8 s 101(1)72 Ibid73 Supra note 58
33
parades It would in my view be quite impractical and unnecessary to legislate an
extensive code of police powers given their common law and statutory responsibilities to
generally maintain public order It is not advisable in my opinion to be prescriptive in
any way regarding what actions the police can take since they must assess what the
situation warrants while at the same time considering individual rights and freedoms
The details of any police response to an emergency must be tailored to the exigencies
related to the situation
The police clearly have common law and statutory authority to conduct warrantless
searches in specific situations (ldquoin exigent circumstancesrdquo)74 However when
warrantless searches must be carried out on a regular routine basis the police are acting
more like full time security guards and there should be specific statutory authority
provided to give such powers
I certainly accept the general proposition the authors assert that the mobility rights of
citizens should not be unreasonably or unfairly dealt with However one only need be
aware of the massive amount of construction taking place on the streets of Toronto as this
Report is being written to appreciate that it is not always reasonable to expect that ldquothe
rights of businesses homeowners and ordinary citizens to go about their routine
activities without interruptionrdquo75 will go unhindered While generally desirable it cannot
be legally guaranteed At the same time the authors do concede that ldquoimportant as they
74 Supra note 42 s 4871175 Supra note 65 p 89
34
are the rights of assembly movement and protest are not unqualified They can ndash and
should ndash be balanced against other important public needsrdquo76
In my view public policing at times requires innovation as it often benefits from
creative problem solving If police abuse their common law powers related to ldquopublic
order policingrdquo they are accountable to a multiplicity of authorities and the rule of law
most particularly the Charter The legal rights outlined in the Charter such as ldquothe
principles of fundamental justicerdquo77 security ldquoagainst unreasonable search and seizurerdquo78
and ldquothe right not to be arbitrarily detained or imprisonedrdquo79 are described very
generally However they were chosen deliberately as it was recognized that in each case
there is an inherent tension between imposing security measures and fundamental rights
and freedoms Determining which is paramount will be based on the facts of each case
76 Ibid p 9177 Canadian Charter of Rights and Freedoms s 7 Part I of the Constitution Act 1982 being Schedule B to the Canada Act 1982 (UK) 1982 c 1178 Ibid s 879 Ibid s 9
35
SECTION 5 LEGAL ANALYSIS OF THE PUBLIC WORKS PROTECTION ACT
A Legal Analysis of the Legislation
Many stakeholders have questioned the constitutional validity of the PWPA and O Reg
23310 The Ontario Ombudsman seriously questioned whether O Reg 23310 could
pass ldquoconstitutional musterrdquo80 The CCLA suggested that the broad police powers
granted under the PWPA were inconsistent with the Charter81
To the same effect were comments made by Premier Dalton McGuinty who described
the PWPA as ldquoan archaic law that was used to undermine Torontoniansrsquo civil rights
during the G20rdquo82 He elaborated83
The issue is whether itrsquos appropriate given our present-day values and given an old law which I am confident doesnrsquot strike the balance that you and I would want today in terms of public safety and individual freedom of expressionhellipWhen you start talking about civil rights individual freedoms yoursquore talking about those things that in fact define us as a free and democratic societyhellipItrsquos something that is real and meaningful and important to all of us
The Terms of Reference for this Review do not require that I conduct a constitutional
analysis of the PWPA I have however been asked to consider areas for reform and if
appropriate make specific recommendations for amendment or repeal This does require
that I therefore consider whether the legislation may be vulnerable to constitutional
challenge
Section 2(b) of the Charter guarantees everyone the fundamental freedom of expression
The definition of ldquoexpressionrdquo has been interpreted broadly ldquoActivity is expressive if it
80 Supra note 32 at para 23381 Supra note 26 p 982 Robert Benzie and Rob Ferguson ldquoMcGuinty shifts focus to fixing G20 lawrdquo Toronto Star (10 December 2010) online thestarcom lthttpwwwthestarcomnewscanadaarticle905436--mcguinty-shifts-focus-to-fixing-g20-lawgt 83 Ibid
36
attempts to convey meaningrdquo84 While freedom of expression is not absolute there is
very little that is not considered expression However expression that advocates violence
is not protected under s 2(b)85
The Supreme Court of Canada in Committee for the Commonwealth of Canada v
Canada held that s 2(b) ldquodoes not encompass the right to use any and all government
property for purposes of disseminating onersquos views on public matters but I have no doubt
that it does include the right to use for that purpose streets and parks which are dedicated
to the use of the public subject no doubt to reasonable regulation to ensure their
continued use for the purposes to which they are dedicatedrdquo86 It seems clear that
protesting in public streets is a form of expression protected by s 2(b) Protesting at an
intergovernmental conference is clearly expressive in nature
In challenges alleging that a statute contravenes s 2(b) of the Charter a court would
examine whether the purpose or effect of a law contravenes section 2(b)87 There is no
reason to suggest that the purpose of the PWPA was to infringe the freedom of
expression The purpose of the PWPA is to protect important public infrastructures A
court would then have to consider whether the effect of the PWPA may have resulted in
an infringement of freedom of expression
O Reg 23310 defined significant portions of downtown Toronto as a ldquopublic workrdquo
Section 3(c) of the PWPA allows peace officers to refuse entry into public works which
therefore limits the areas in which protesters could express themselves By creating the
84 Irwin Toy Ltd v Queacutebec (Attorney General) [1989] 1 SCR 927 at 96885 Ibid at 97086 [1991] 1 SCR 139 at 165-16687 Peter Hogg Constitutional Law of Canada loose-leaf (consulted on 7 January 2011) 5th ed (Toronto Thomson Reuters Canada Limited 2007) at 43-6
37
relatively large security perimeter designated by the regulation individuals may allege
they were not permitted to communicate directly with those they were protesting against
Furthermore individuals could not communicate in public places such as public streets
where the right to freedom of expression has previously been found to exist88
Commissioner Ted Hughes completed an interim report following a public hearing into
the complaints regarding events that took place with respect to the Asia Pacific Economic
Cooperation (APEC) Conference in Vancouver British Columbia in November 1997
Commissioner Hughes recommended that generous opportunity should be afforded to
peaceful protesters to be seen in their protest activities by guests at the event89
Section 7 of the Charter provides that ldquoEveryone has the right to life liberty and security
of the person and the right not to be deprived thereof except in accordance with the
principles of fundamental justicerdquo The PWPA raises issues regarding the liberty and
security of the person in providing for warrantless searches and stopping for
identification Furthermore vague laws offend two fundamental values of our legal
system90 Firstly individuals are not provided with sufficient guidance as to what
behaviour a law prohibits Secondly those in charge of enforcing the law are not
provided with clear guidance as to how to enforce it A vague law can lead to inconsistent
and arbitrary enforcement91
88 Supra note 86 89 Canada Commission for Public Complaints Against the RCMP APEC ndash Commission Interim Report (31 July 2001) at s 3111 (Commissioner Ted Hughes QC) online Commission for Public Complaints Against the RCMP lthttpwwwcpc-cppgccaprrrepphrapecapec-31-engaspxgt90 Supra note 87 at 47-60 91 ldquoA vague provision does not provide an adequate basis for legal debate that is for reaching a conclusion as to its meaning by reasoned analysis applying legal criteria It does not sufficiently delineate any area of risk and thus can provide neither fair notice to the citizen nor a limitation of enforcement discretion Such
38
As described by Professor Hogg92
The requirement that any limit on rights be prescribed by law reflects two values that are basic to constitutionalism or the rule of law First in order to preclude arbitrary and discriminatory action by government officials all official action in derogation of rights must be authorized by law Secondly citizens must have reasonable opportunity to know what is prohibited so that they can act accordingly Both these values are satisfied by a law that fulfils two requirements (1) the law must be adequately accessible to the public and (2) the law must be formulated with sufficient precision to enable people to regulate their conduct by it and to provide guidance to those who apply the law
As I stated earlier the phrase ldquoany approach theretordquo contained in s 3(a) of the PWPA is
potentially vague No criteria are provided to assist in determining when one is on ldquoany
approach theretordquo A phrase such as ldquoany approach theretordquo is subject to many potential
interpretations It is arguable that this language does not provide reasonable guidance for
individuals to obey the law and for the law to be consistently enforced
Section 8 of the Charter provides that ldquoEveryone has the right to be secure against
unreasonable search or seizurerdquo A warrantless search or seizure is only reasonable if the
search was authorized by law the law itself is reasonable and the manner in which the
search carried out was reasonable93 The fact that no reasonable or probable suspicions
are needed to carry out a search pursuant to s 3(b) of the PWPA raises some issues The
only prerequisite to such a search is that the person or vehicle being subjected to a search
is entering or attempting to enter a public work
a provision is not intelligible to use the terminology of previous decisions of this Court and therefore it fails to give sufficient indications that could fuel a legal debaterdquo (R v Nova Scotia Pharmaceutical Society [1992] 2 SCR 606 at 639-640) 92 Supra note 87 at 38-1293 R v Nolet [2010] SCJ No 24 at para 21
39
Whether the PWPArsquos s 3(b) authority to undertake warrantless searches is ldquoreasonablerdquo
depends on the reasonableness of the impact on the subject of the search ldquoThe
individuals reasonable expectation of privacy must of course be balanced against the
public interest in effective law enforcementrdquo94 It is harder to justify a warrantless search
where the reasonable expectation of privacy is higher For example interference with
bodily integrity will raise the standard of reasonableness Conversely in situations where
people expect to have a lower level of privacy the standard to prove reasonableness is
lower
One rightfully has some expectation of privacy when in public but it does not rise to the
level of privacy that one expects in onersquos home The expectation of privacy further
decreases when one attempts to enter a ldquopublic workrdquo especially in the context of a
secured barrier to an intergovernmental conference
Section 9 of the Charter provides that ldquoEveryone has the right not to be arbitrarily
detained or imprisonedrdquo95 Under s 3(a) of the PWPA a person entering or attempting to
enter or approach a public work must provide his or her name and address and state the
purpose for which he or she desires to enter the public work In order for a guard or
peace officer to carry out this duty the guard or peace officer may ldquostoprdquo the person from
further approaching or entering the public work and the person is not permitted under the
statute to decide not to enter By so doing it is arguable the guard or peace officer has
assumed control over the movement of the individual by a demand or direction The
94 R v Rao [1984] OJ No 3180 at para 79 (CA)95 ldquoDetention under s 9hellipof the Charter refers to a suspension of the individualrsquos liberty interest by a significant physical or psychological restraint Psychological detention is established either where the individual has a legal obligation to comply with the restrictive request or demand or a reasonable person would conclude by reason of the state conduct that he or she had no choice but to complyrdquo (R v Grant [2009] SCJ No 32 at para 44)
40
PWPA provides for a significant legal consequence if the demand or direction is not
followed since ldquoEvery person who neglects or refuses to comply with a request or
direction made under this Act by a guard or peace officer and every person found upon a
public work or any approach thereto without lawful authority the proof whereof lies on
him or her is guilty of an offence and on conviction is liable to a fine of not more than
$500 or to imprisonment for a term of not more than two months or to bothrdquo96
Pursuant to s 3(b) of the PWPA a guard or peace officer may search any person entering
or attempting to enter a public work These searches would necessitate the detention of a
person If a guard or peace officer performs such a search he or she has taken control
over the movement of the person by a demand or direction The same serious legal
consequence results from failing to obey this demand or direction as that which results
from failing to obey the demand or direction pursuant to s 3(a) of the PWPA As a
result ldquodetentionsrdquo could occur pursuant to both s 3(a) and s 3(b) of the PWPA
The question that would need to be addressed in any challenge to the PWPA is whether
the detentions permitted by the PWPA are arbitrary in nature The use of the term ldquoany
approach theretordquo is vague and imprecise A person could be deemed to be on ldquoany
approach theretordquo a great distance from the entrance of a public work and their detention
might very well be arbitrary In addition the fact that the guards and peace officers
determine the boundaries of the ldquoapproachesrdquo which cannot be contested seems
arbitrary as well as who they chose to search
96 It should be noted that not all communications with state authorities and police officers will amount to a detention The question is whether a person may reasonably believe that he or she is free to refuse to comply
41
Section 11(d) of the Charter provides that ldquoAny person charged with an offence has the
right to be presumed innocent until proven guilty according to law in a fair and public
hearing by an independent and impartial tribunalrdquo This requires that the Crown have the
burden of proving the guilt of an individual charged with an offence97 Provisions that
place the burden on the accused to disprove on the balance of probabilities an essential
element of an offence raises s 11(d) concerns because convictions would be possible
even if reasonable doubt existed98 The presumption of innocence is not only infringed
upon by a requirement that an accused disprove an essential element of an offence but
also any requirement on an accused to prove a fact on the balance of probabilities to
avoid conviction
Section 5(1) of the PWPA states that ldquoEvery person who neglects or refuses to comply
with a request or direction made under this Act by a guard or peace officer and every
person found upon a public work or any approach thereto without lawful authority the
proof whereof lies on him or her is guilty of an offence and on conviction is liable to a
fine of not more than $500 or to imprisonment for a term of not more than two months or
to bothrdquo For the offence of being found upon a public work or on any approach to a
public work without lawful authority the burden of proof has been ldquoshiftedrdquo from the
Crown to the accused to prove lawful authority
As the foregoing analysis reveals there are certainly many concerns that arise when one
places the PWPA under the lens of the Charter However the rights and freedoms
provided by the Charter are not absolute They are ldquosubject only to such reasonable
97 R v Oakes [1986] 1 SCR 10398 Ibid at 132
42
limits prescribed by law as can be demonstrably justified in a free and democratic
societyrdquo99
In assessing whether a law which infringes the Charter is saved by s 1 a court examines
both the object of the law and the measures taken to achieve that objective A lawrsquos
objective achieves the status of being sufficiently important to justify overriding a
Charter right only when it is consistent with the values of a free and democratic society
The objective must relate to pressing and substantial concerns and not concerns that are
trivial and must be focussed on ldquothe realization of collective goals of fundamental
importancerdquo100 The measures adopted must be ldquorationally connectedrdquo to the objective of
the law101 The measures ldquoshould impair lsquoas little as possiblersquo the right or freedom in
questionrdquo102 Furthermore there must be ldquoa proportionality between the effects of the
measures which are responsible for limiting the Charter right or freedom and the
objective which has been identified as of lsquosufficient importancersquordquo103
An issue that may affect whether the potential limitation on rights and freedoms of the
PWPA and O Reg 23310 were ldquoprescribed by lawrdquo is whether the regulation was
adequately accessible to the public The Ontario Ombudsman the CCLA and the Ontario
Bar Association (ldquoOBArdquo) all noted a lack of notice regarding O Reg 23310 and its
effects prior to and during the G20 While the text of the regulation was available prior
99 Charter s 1 The Superior Court of Quebec decision of Tremblay v Queacutebec (Attorney General) [2001] JQ No 1504 (CS) involved an interim injunction brought by an applicant who was denied entry into the secured perimeter during the 2001 Summit of the Americas in Queacutebec City The applicant sought an injunction to either eliminate the security barrier or to be given a pass to let him within the secured perimeter Even though the Court held that the erection of the security zone violated the applicantrsquos right to freedom of expression and peaceful assembly The court held that the infringement was ldquodemonstrably justified in a free and democratic societyrdquo100 Supra note 97 at 136101 Ibid at 139102 Ibid103 Ibid
43
to the G20 it was only available on a website not frequently accessed by the public
Since O Reg 23310 was not published in The Ontario Gazette until after it was
revoked it may be that the regulation was not adequately accessible to the public
Reverse onus offences have been found to be ldquorationally connectedrdquo when there is plainly
a rational connection between the proven fact and the fact to be presumed Reverse
onuses have also been upheld when the burden placed on the Crown would be virtually
impossible to meet (such as proving sanity)104 Even if the accused only has the burden
of disproving the fact that heshe did not have lawful authority to be in a public work or
on an approach thereto there may not be a rational connection between the proven fact
and the fact to be presumed
The history of threats and violence at previous intergovernmental conferences
demonstrated that the protection of G20 participants was a pressing and substantial
concern However given the broadness of the PWPA every exercise of it raises the
potential for Charter scrutiny
Recommendation
Given the public policy considerations I have raised regarding the PWPA and Charter
concerns that could arise I recommend that the PWPA be repealed after the Province has
considered potential policy and security gaps as a result of its repeal
B Other uses of the Public Works Protection Act
It appears from my consultations with stakeholder groups that if the PWPA is repealed
104 R v Chaulk [1990] 3 SCR 1303 at 1340
44
there are two areas which may require legislation to provide specific peace officer
powers These two areas are court security and the protection of nuclear power facilities
and other power generating infrastructures
1 Court Security
During my decade as Ontariorsquos Attorney General (1975 to 1985) there were three
murders in provincial courthouses as well as many threats to members of courthouse staff
and others As violent acts in courthouses can be anticipated courtroom security is often
required
Individuals are compelled to go to court for a variety of reasons such as appearing as an
accused as a witness or for jury duty To provide protection to those who work there or
are compelled to attend an adequate level of court security may require a search without
warrant of each and every individual who seeks to enter a courthouse It is not reasonable
to require prior judicial authorization for each search that takes place
The courts have considered the constitutionality of these provisions of the PWPA in
conjunction with section 137 of the Ontario Police Services Act in the context of court
security
Section 137 of the Ontario Police Services Act imposes a responsibility on municipal
police services boards to secure the premises where court proceedings are conducted and
includes
1 Ensuring the security of judges and of persons taking part in or attending proceedings
45
2 During the hours when judges and members of the public are normally present ensuring the security of the premises
3 Ensuring the secure custody of persons in custody who are on or about the premises including persons taken into custody at proceedings
4 Determining appropriate levels of security for the purposes of paragraphs 1 2 and 3
In R v Campanella105 Ms Campanella was attending the John Sopinka Courthouse in
Hamilton At the courthouse there were signs posted stating that those who entered
would be searched for weapons When Ms Campanellarsquos bag was searched marijuana
was found and she was charged with the possession of marijuana She argued that her s
8 Charter protection against unreasonable search and seizure had been violated and the
marijuana discovered during the search should therefore be excluded as evidence The
trial judge and the summary convictions appeal court rejected the section 8 Charter
argument and the appellant appealed to the Ontario Court of Appeal
The Ontario Court of Appeal agreed that ldquogiven the importance of the government
objective and the context in which these searches take place it is reasonable to authorize
warrantless searches of those entering courthouse facilitiesrdquo106 The Court stated ldquothe
only effective way to diminish the risk in a large courthouse is to subject everyone
without prior security clearance to some kind of inspection I can see no other feasible
means of achieving the aimrdquo107
The Court also pointed out the concern relating to the erosion of the benefits and
105 [2002] OJ No 5104 (SCJ) affrsquod [2005] OJ No 1345 (CA) [ldquoCampanellardquo]106 R v Campanella [2005] OJ No 1345 at para 17 (CA)107 Ibid at para 19
46
protections conferred by s 8 of the Charter108
I am sensitive to the concern that we should not erode the benefits and protections of s 8 by gradually sanctioning ever-greater intrusions into privacy because of unfounded fears We should not lightly accept that searches in public places are justified solely because people have become used to them and expect them However the record in this case establishes the justification for the kinds of searches carried out in this case
Ultimately the appeal was dismissed and s 137 of the Police Services Act and s 3(b) of
the PWPA) were held to comply with s 8 of the Charter109
In its consultations with me the OBA similarly stated that the existing nature of court
security is necessary and is generally ldquowell toleratedrdquo At the same time however it
submits that the security regime should not be ldquoshoehornedrdquo into the PWPA regime and
that it would be preferable to provide a legislative framework tailored for the specific
security requirements While the PWPA has been relied upon as support for the exercise
of powers by the police in providing court security the OBA submits that the PWPArsquos
ldquosingle security schemerdquo which declares something a ldquopublic workrdquo is an ldquoawkward
blunt instrument in a world where more specialized tools are necessaryrdquo When
warrantless searches are being done on a routine basis it is advisable to have specific
legislation providing peace officers with such power
Recommendation
Court security legislation is currently in place in many jurisdictions across Canada and
contain provisions that permit warrantless searches of persons wanting to access a
108 Ibid at para 25109 The Court in R v SS [2005] OJ No 5002 (SCJ) agreed with the findings and rationale of the Court of Appeal in Campanella
47
courthouse The constitutional validity of such legislation in Manitoba was upheld by that
provincersquos highest court110
Given the ongoing need for warrantless searches at courthouses the Province of Ontario
should consider specific court security legislation in Ontario to support the security
measures in our courthouses if the PWPA is to be repealed taking into consideration the
responsibilities of the municipal police services boards provided in s 137 of the Police
Services Act This legislation should only be passed after proper notice consultation and
legislative debate
2 Power Generating Infrastructures
It is clear from the submissions that I received from representatives of OPG and the
Canadian Nuclear Safety Commission (ldquoCNSCrdquo) that the PWPA currently plays a role in
providing security officers with the powers to secure power generating infrastructures
including the ability to carry firearms and the ability to stop and require identification
from those in proximity to those nuclear plants
Security is of the utmost importance in protecting a nuclear power plant Members of the
public do not need to access a nuclear or similar power facility unless employed at the
facility or carrying out work for the facility111
The security of areas within nuclear power plants is governed by the Nuclear Security
110 R v Lindsay [2004] MJ No 380 (CA) 111 Though the discussion focuses on nuclear power plants I have been informed that other power generating infrastructures use the PWPA to designate their security officers as guards As a result if the PWPA is repealed it will be necessary to broaden the consultations in relation to these other power generating infrastructures
48
Regulations112 Every nuclear power plant must be located within a ldquoprotected areardquo113
This protected area is the area within a fenced perimeter which is alarmed and
continually patrolled This area must be equipped with devices that employ two
independent systems to detect intrusion into the area114 The Nuclear Security
Regulations also provide detailed specifications for the barrier which must enclose the
protected area115 In addition licensees must ldquoidentify all vital areas and implement
physical protection measures ndash including access control and measures designed to delay
unauthorized accessrdquo116
The Nuclear Security Regulations also provide detailed provisions regarding entry into
protected areas No person can ldquoenter a protected area without physical proof of the
recorded authorization of the licenseerdquo117 Further to this on entry into a protected area
ldquothat personrsquos identity shall be verified by two separate personnel identity verification
systems one of which is an access card reader and the other of which is a biometric
personnel identity verification devicerdquo118 Licensees must also ldquoensure that vehicle
portals are used for the entry and exit of land vehicles into and from a protected areardquo119
Physical protection measures are also required to reduce the chance of a forced land
vehicle entry into a protected area120
The power to conduct searches upon entry to a protected area is also provided by the
112 SOR2000-209 113 Ibid s 8114 Ibid s 11(a)(i)115 Ibid s 9116 Ibid s 141117 Ibid s 17(1)118 Ibid s 171119 Ibid s 91(1)120 Ibid s 91(4)
49
Nuclear Security Regulations Signs must be posted that are visible to people about to
enter the protected area stating that they must allow a nuclear security officer (ldquoNSOrdquo) to
ldquosearch them and everything in their possession including any land vehicle for weapons
and explosive substancesrdquo121 In addition when leaving the protected area people must
allow NSOs to ldquosearch them and everything in their possession including any land
vehicle for Category I II or III nuclear materialrdquo122 People are not permitted to enter or
leave a protected area unless these searches are carried out123 The Nuclear Security
Regulations provide for the method of search including ldquoa hand-held scanner a walk-
through scanner or any similar devicerdquo124 In addition if an NSO determines it
necessary a frisk search can be carried out by a person of the same sex125
I have been informed that the area outside of but adjacent to the ldquoprotected areardquo is
referred to as the ldquocontrolled areardquo This area includes roadways and waterways within
the nuclear facilityrsquos property boundaries adjacent to or in close proximity to the nuclear
power plantrsquos protected area and may be generally accessible to the public
As a result of the September 11 2001 terrorist attacks the Nuclear Security Regulations
were amended to require that high security nuclear facilities maintain an on-site armed
Nuclear Response Force (ldquoNRFrdquo)126 The NRF is composed of specialized NSOs
Section 32 of the Nuclear Security Regulations requires the NRF to be capable of making
an effective intervention taking into account the threat
121 Ibid s 27(1)(a)122 Ibid s 27(1)(b)123 Ibid s 27(2)124 Ibid s 27(5)(a)125 Ibid s 27(5)(b)126 Ibid s 32
50
Members of the NRF are mandated by the Nuclear Security Regulations to be ldquotrained in
the use of firearms authorized to carry firearms in Canada and qualified to use themrdquo127
However to satisfy this requirement the NRF resorts to the PWPA since the federal
regulations do not authorize the NRF to carry firearms without a licence However
under s 2(1) of the PWPA NSOs are designated as ldquoguardsrdquo with the powers of a peace
officer most significantly to carry and use firearms without having to be licensed128
Such a designation also enables the OPG to acquire and dispose of firearms
In the consultations I had with the OPG and the CNSC they advised me that NSOs
receive training equivalent to Canadian police standards and that NRF officers receive
training equivalent to federal and provincial police tactical team requirements
Another aspect of the PWPA used to secure nuclear power plants relates to powers
exercised by NSOs in ldquocontrolled areasrdquo The federal regulations do not provide the
NSOs with any power to demand identification within this area However pursuant to
the PWPA as appointed ldquoguardsrdquo the NSOs have the power to demand identity
verification in the controlled area They also have the authority to arrest anyone who
obstructs NSOs in the performance of their duties under the PWPA
In addition to using the PWPA to secure the controlled areas I have been advised by the
OPG that NSOs use powers pursuant to the PWPA to secure areas within 100 metres of a
nuclear facilityrsquos property line immediately adjacent to the controlled area These powers
are exercised under the broad language of the PWPA regarding ldquoapproaches to public
127 Ibid s 1 (on-site nuclear response force definition)128 Section 11707 of the Criminal Code exempts peace officers from licensing requirements for possessing firearms and other prohibited and restricted weapons
51
worksrdquo This is an illustration of the problem with the vagueness of this language in the
legislation As these powers are exercised on public land they could be challenged as a
potential infringement on individual rights and freedoms However I have been advised
that there have been no such incidents to date The need to ensure the security of these
facilities must be taken into the balance
NSOs must be able to monitor and control access to the controlled areas and areas close
to a nuclear power plantrsquos property line This provides for a more secure perimeter
around these facilities They need authority to challenge individuals acting in a suspicious
manner or conducting surveillance of nuclear facilities The OPG has informed me that
areas outside a nuclear facilityrsquos property line immediately adjacent to the controlled
area are still close enough to take advantage of the short distance to conduct intelligence
using high-powered surveillance equipment These nuclear power plants are not located
on isolated islands and are therefore vulnerable Both the Pickering Nuclear Generating
Station and the Darlington Nuclear Generating Station operate within major urban areas
being 30 km and 60 km east of downtown Toronto respectively I am advised that
previous events such as ldquoThe Toronto 18rdquo129 have shown that those intent on targeting
vital infrastructure such as power generating facilities often use reconnaissance and
intelligence gathering as precursor tactics
Recommendation
If the PWPA is to be repealed it is imperative that those who secure our nuclear and
power generating facilities be given the requisite specific legislative powers to do so
129 See for example ldquoLast 2 Toronto 18 accused found guiltyrdquo CBC News (23 June 2010) online cbcca lthttpwwwcbccanewscanadatorontostory20100623toronto-18-verdicthtmlgt
52
The source for these powers should be set out in the federal Nuclear Security
Regulations However if this is not a desired option the Government of Ontario must
consider specific legislation setting out the specific powers required to properly secure
these facilities and the specific location in which these powers can be exercised Such
legislation should not be passed without proper notice consultation and legislative
debate
53
SECTION 6 CONCLUSION
The PWPA was enacted in 1939 to support the war effort At the time the protection of
Ontariorsquos hydroelectric facilities from sabotage was of particular concern Since then the
PWPA has been used to provide the legal foundation for the powers exercised by the
police in providing court security and even more recently by the OPG in securing
nuclear power facilities In June 2010 the PWPA was used to provide powers to secure
intergovernmental conferences The vagueness of the PWPA permits it to be used in
situations when it is arguably not necessary and potentially abusive In my view the
PWPA has been used for purposes beyond its original intent
The time for the PWPA seems to have passed If the Government of Ontario enacts as I
have suggested specific legislation to provide for courthouse security and power
generating infrastructure security it would appear that there is no longer a need for the
PWPA I am also mindful of the existence of counter-terrorism and emergencies
legislation to deal with these situations as they arise
ldquoIn determining the boundaries of police powers caution is required to ensure the proper
balance between preventing excessive intrusions on an individualrsquos liberty and privacy
and enabling the police to do what is reasonably necessary to perform their duties in
protecting the publicrdquo130 The overly broad and vague language of the PWPA does not
strike this required balance with individual rights and freedoms
The late Justice Jackson of the United States Supreme Court stated that every
emergency power once conferred ldquolies about like a loaded weapon ready for the hand of
130 R v Clayton [2007] 2 SCR 725 at 742
54
any authority that can bring forward a plausible claim of an urgent needrdquo131 The need to
protect the public must be balanced with the requirement to preserve fundamental rights
and freedoms
Yet at the same time ldquoCanadians are entitled to demand the best public order policing
possible from their governmentrdquo132 There is no question that we live in a different world
post 911 We live in difficult times with constant threats both domestically and from
abroad The police clearly need to be given adequate powers to carry out their duties
The police use their expertise on a daily basis to assess the powers they require In
instances when they take action that exceeds their powers their actions are examined by
various mandated bodies This process I believe results in the proper balance between
police powers and individual rights and freedoms Therefore any legislation that purports
to grant special police powers must be specific and direct and developed in consultation
with stakeholders and tested through thorough debate in our transparent democratic
system
131 Korematsu v United States 323 US 214 (1944)132 Supra note 26 p 8
55
considered it timely ldquoto clarify in statute the present common law authority for police to
provide security and protection for high profile international eventsrdquo58 At such events it
was intended that ldquothe RCMP is the lead to make sure that security is providedrdquo59
Given that it was clearly the intention of the Federal Government to have the RCMP as
the lead police force at these international events consideration should be given to
expand the use of the FMIOA to cover all large scale international events such as the
Olympics the Pan American Games and international trade fairs as these events are
routinely attended by heads of state and senior government officials Most recently
Vancouver held the 2010 Olympic and Paralympic Winter Games60 Though federal and
municipal legislation were passed to assist in securing the Games expansion and
application of the FMIOA would have been a better approach The RCMP as the national
police force ought to be in charge pursuant to their authority under the FMIOA
4 Emergency Legislation
Through my consultations with the parties listed in Appendix 2 I heard that while we are
not in a time of war as in 1939 when the PWPA was enacted we live in an age of
international and local terrorism threats Our democratic society must be vigilant in
58 Canada House of Commons Debates 37th Parl 1st Sess No 93 (5 October 2001) at 100059 Canada House of Commons Standing Committee on Public Safety and National Security 40th Parl 3rd
Sess Evidence (25 October 2010)60 In anticipation of this event the Governor General in Council on the recommendation of the Minister of Transport pursuant to the Aeronautics Act (RSC 1985 c A-2) and the Canadian Air Transport Security Authority Act (SC 2002 c 9 s 2) passed the Vancouver 2010 Aviation Security Regulations (SOR2009-298) The purpose of the regulations was to enhance aviation security during the Games The Regulation provided for extra security and extra authorized means to conduct screenings In addition the Vancouver City Council passed the very lengthy By-law No 9962 known as the ldquoVancouver 2010 Olympic and Paralympic Winter Games By-Lawrdquo Specific security measures to be employed at a city live site (described thoroughly in a Schedule to the By-Law) that were enabled by this By-Law included The installation and monitoring of airport style and other security measures including magnetometers and X-ray machines the installation and monitoring of closed circuit television cameras the searching of any person who wished to enter on to a city live site and any bag luggage or other container carried by such person and the prohibiting of access to or removal from a city live site any person who refused to submit to a search
30
maintaining a proper level of security while recognizing that democratic values and
security issues can conflict where public order is at issue It is important to highlight that
provincial legislation exists dealing with both terrorism threats and emergency situations
I have been informed that federal and provincial counter-terrorism plans exist that
address preventing and responding to acts of terrorism
The Police Services Act regulations mandate police forces to establish procedures
consistent with federal and provincial counter-terrorism plans61 and to have policies with
respect to counter-terrorism62 In addition the Emergency Management and Civil
Protection Act allows for orders to be made in situations specifically designated an
ldquoemergencyrdquo63 by the Lieutenant Governor in Council or the Premier that regulate or
prohibit travel and movement to from or within any specified area64 Therefore the
PWPA is not needed to deal with these emergency situations as specific more recent
emergency legislation is in place for that very purpose
C Gaps in Canadian Police Powers
The Ministry of Community Safety and Correctional Services provided me with an
interesting article published in 2010 entitled ldquoThe Gap in Canadian Police Powers
61 Adequacy and Effectiveness of Police Services O Reg 399 s 2862 Ibid s 2963 Section 1 of the Emergency Management and Civil Protection Act defines an ldquoemergencyrdquo as ldquoemergencyrdquo means a situation or an impending situation that constitutes a danger of major proportions that could result in serious harm to persons or substantial damage to property and that is caused by the forces of nature a disease or other health risk an accident or an act whether intentional or otherwise (ldquosituation drsquourgencerdquo)64 RSO 1990 c E9 s 702(4)
31
Canada needs lsquoPublic Order Policingrsquo Legislationrdquo and co-authored by Wesley Pue and
Robert Diab65
This article was prompted by the debate over the cost nature and extent of security to be
employed at the Vancouver 2010 Winter Olympics The authors criticized the fact that
policing authorities in Canada ldquolack specific statutory authorization to take measures
commonly thought necessary to their missionrdquo66 These measures included security
fences in public areas designated protest areas restricted access to public space police
surveillance and searches without cause
The authors recognize that such powers may be necessary but note that ldquono legislature
has ever expressly conferred such powers on policing authorities outside the context of
international intergovernmental conferences Nor does the common law accord such
powers to state officials on its ownrdquo67 I respectfully disagree with this latter statement
It is my view the police have powers pursuant to the common law and statute as I have
discussed in the preceding section
The authors referred to R v Knowlton68 which I have previously discussed While the
authors give Knowlton a very narrow interpretation stating that ldquoits binding principle is a
good deal narrower than the words taken out of context might suggestrdquo69 I however am
of the view that the decision supports the proposition that police have a broad range of
65 Wesley Pue and Robert Diab ldquoThe Gap In Canadian Police Powers Canada Needs lsquoPublic Order Policingrsquo Legislationrdquo (2010) 28 Windsor Rev Legal Soc Issues 87 Wesley Pue is a professor of legal history at the University of British Columbia and Robert Diab is a PhD candidate at the UBC Faculty of Law66 Ibid p 8867 Ibid68 Supra note 3469 Supra note 65 p 92
32
responsibilities with deep historical roots in the common law and codified in statute a
position shared by the Federal Government when it introduced amendments to the
FMIOA The actions of the police in Knowlton were necessarily incidental to their
common law police duties and powers
The authors conclude that this ldquoauthority of police to create zones of exclusion either as
an incident of the general and ancient duties of constableshelliphas never been established in
the courtsrdquo70 I am of the view however that the role of the police in establishing
security zones relating to a crime a serious accident or other emergency is a routine and
well-accepted use of police powers pursuant to their common law and statutory duties I
am not suggesting that this common law authority permits the police to establish security
zones ldquofor the proper functioning of any intergovernmental conference in which two or
more states participaterdquo71 larger than necessary to fulfill their purpose The FMIOA as
amended in 2002 provides the RCMP with ldquoprimary responsibility to ensure the security
for the proper functioning of the intergovernmental conferencerdquo72 It is interesting
however that when the Federal Government was enacting this specific authority the
legislative debates indicated that the government was merely clarifying ldquoin statute the
present common law authority for police to provide security and protection for high
profile international eventsrdquo73
Security perimeters are routinely erected by police in the context of the commission of a
crime motor vehicle and other accidents as well as the Santa Claus parade and other
70 Ibid p 9671 Supra note 8 s 101(1)72 Ibid73 Supra note 58
33
parades It would in my view be quite impractical and unnecessary to legislate an
extensive code of police powers given their common law and statutory responsibilities to
generally maintain public order It is not advisable in my opinion to be prescriptive in
any way regarding what actions the police can take since they must assess what the
situation warrants while at the same time considering individual rights and freedoms
The details of any police response to an emergency must be tailored to the exigencies
related to the situation
The police clearly have common law and statutory authority to conduct warrantless
searches in specific situations (ldquoin exigent circumstancesrdquo)74 However when
warrantless searches must be carried out on a regular routine basis the police are acting
more like full time security guards and there should be specific statutory authority
provided to give such powers
I certainly accept the general proposition the authors assert that the mobility rights of
citizens should not be unreasonably or unfairly dealt with However one only need be
aware of the massive amount of construction taking place on the streets of Toronto as this
Report is being written to appreciate that it is not always reasonable to expect that ldquothe
rights of businesses homeowners and ordinary citizens to go about their routine
activities without interruptionrdquo75 will go unhindered While generally desirable it cannot
be legally guaranteed At the same time the authors do concede that ldquoimportant as they
74 Supra note 42 s 4871175 Supra note 65 p 89
34
are the rights of assembly movement and protest are not unqualified They can ndash and
should ndash be balanced against other important public needsrdquo76
In my view public policing at times requires innovation as it often benefits from
creative problem solving If police abuse their common law powers related to ldquopublic
order policingrdquo they are accountable to a multiplicity of authorities and the rule of law
most particularly the Charter The legal rights outlined in the Charter such as ldquothe
principles of fundamental justicerdquo77 security ldquoagainst unreasonable search and seizurerdquo78
and ldquothe right not to be arbitrarily detained or imprisonedrdquo79 are described very
generally However they were chosen deliberately as it was recognized that in each case
there is an inherent tension between imposing security measures and fundamental rights
and freedoms Determining which is paramount will be based on the facts of each case
76 Ibid p 9177 Canadian Charter of Rights and Freedoms s 7 Part I of the Constitution Act 1982 being Schedule B to the Canada Act 1982 (UK) 1982 c 1178 Ibid s 879 Ibid s 9
35
SECTION 5 LEGAL ANALYSIS OF THE PUBLIC WORKS PROTECTION ACT
A Legal Analysis of the Legislation
Many stakeholders have questioned the constitutional validity of the PWPA and O Reg
23310 The Ontario Ombudsman seriously questioned whether O Reg 23310 could
pass ldquoconstitutional musterrdquo80 The CCLA suggested that the broad police powers
granted under the PWPA were inconsistent with the Charter81
To the same effect were comments made by Premier Dalton McGuinty who described
the PWPA as ldquoan archaic law that was used to undermine Torontoniansrsquo civil rights
during the G20rdquo82 He elaborated83
The issue is whether itrsquos appropriate given our present-day values and given an old law which I am confident doesnrsquot strike the balance that you and I would want today in terms of public safety and individual freedom of expressionhellipWhen you start talking about civil rights individual freedoms yoursquore talking about those things that in fact define us as a free and democratic societyhellipItrsquos something that is real and meaningful and important to all of us
The Terms of Reference for this Review do not require that I conduct a constitutional
analysis of the PWPA I have however been asked to consider areas for reform and if
appropriate make specific recommendations for amendment or repeal This does require
that I therefore consider whether the legislation may be vulnerable to constitutional
challenge
Section 2(b) of the Charter guarantees everyone the fundamental freedom of expression
The definition of ldquoexpressionrdquo has been interpreted broadly ldquoActivity is expressive if it
80 Supra note 32 at para 23381 Supra note 26 p 982 Robert Benzie and Rob Ferguson ldquoMcGuinty shifts focus to fixing G20 lawrdquo Toronto Star (10 December 2010) online thestarcom lthttpwwwthestarcomnewscanadaarticle905436--mcguinty-shifts-focus-to-fixing-g20-lawgt 83 Ibid
36
attempts to convey meaningrdquo84 While freedom of expression is not absolute there is
very little that is not considered expression However expression that advocates violence
is not protected under s 2(b)85
The Supreme Court of Canada in Committee for the Commonwealth of Canada v
Canada held that s 2(b) ldquodoes not encompass the right to use any and all government
property for purposes of disseminating onersquos views on public matters but I have no doubt
that it does include the right to use for that purpose streets and parks which are dedicated
to the use of the public subject no doubt to reasonable regulation to ensure their
continued use for the purposes to which they are dedicatedrdquo86 It seems clear that
protesting in public streets is a form of expression protected by s 2(b) Protesting at an
intergovernmental conference is clearly expressive in nature
In challenges alleging that a statute contravenes s 2(b) of the Charter a court would
examine whether the purpose or effect of a law contravenes section 2(b)87 There is no
reason to suggest that the purpose of the PWPA was to infringe the freedom of
expression The purpose of the PWPA is to protect important public infrastructures A
court would then have to consider whether the effect of the PWPA may have resulted in
an infringement of freedom of expression
O Reg 23310 defined significant portions of downtown Toronto as a ldquopublic workrdquo
Section 3(c) of the PWPA allows peace officers to refuse entry into public works which
therefore limits the areas in which protesters could express themselves By creating the
84 Irwin Toy Ltd v Queacutebec (Attorney General) [1989] 1 SCR 927 at 96885 Ibid at 97086 [1991] 1 SCR 139 at 165-16687 Peter Hogg Constitutional Law of Canada loose-leaf (consulted on 7 January 2011) 5th ed (Toronto Thomson Reuters Canada Limited 2007) at 43-6
37
relatively large security perimeter designated by the regulation individuals may allege
they were not permitted to communicate directly with those they were protesting against
Furthermore individuals could not communicate in public places such as public streets
where the right to freedom of expression has previously been found to exist88
Commissioner Ted Hughes completed an interim report following a public hearing into
the complaints regarding events that took place with respect to the Asia Pacific Economic
Cooperation (APEC) Conference in Vancouver British Columbia in November 1997
Commissioner Hughes recommended that generous opportunity should be afforded to
peaceful protesters to be seen in their protest activities by guests at the event89
Section 7 of the Charter provides that ldquoEveryone has the right to life liberty and security
of the person and the right not to be deprived thereof except in accordance with the
principles of fundamental justicerdquo The PWPA raises issues regarding the liberty and
security of the person in providing for warrantless searches and stopping for
identification Furthermore vague laws offend two fundamental values of our legal
system90 Firstly individuals are not provided with sufficient guidance as to what
behaviour a law prohibits Secondly those in charge of enforcing the law are not
provided with clear guidance as to how to enforce it A vague law can lead to inconsistent
and arbitrary enforcement91
88 Supra note 86 89 Canada Commission for Public Complaints Against the RCMP APEC ndash Commission Interim Report (31 July 2001) at s 3111 (Commissioner Ted Hughes QC) online Commission for Public Complaints Against the RCMP lthttpwwwcpc-cppgccaprrrepphrapecapec-31-engaspxgt90 Supra note 87 at 47-60 91 ldquoA vague provision does not provide an adequate basis for legal debate that is for reaching a conclusion as to its meaning by reasoned analysis applying legal criteria It does not sufficiently delineate any area of risk and thus can provide neither fair notice to the citizen nor a limitation of enforcement discretion Such
38
As described by Professor Hogg92
The requirement that any limit on rights be prescribed by law reflects two values that are basic to constitutionalism or the rule of law First in order to preclude arbitrary and discriminatory action by government officials all official action in derogation of rights must be authorized by law Secondly citizens must have reasonable opportunity to know what is prohibited so that they can act accordingly Both these values are satisfied by a law that fulfils two requirements (1) the law must be adequately accessible to the public and (2) the law must be formulated with sufficient precision to enable people to regulate their conduct by it and to provide guidance to those who apply the law
As I stated earlier the phrase ldquoany approach theretordquo contained in s 3(a) of the PWPA is
potentially vague No criteria are provided to assist in determining when one is on ldquoany
approach theretordquo A phrase such as ldquoany approach theretordquo is subject to many potential
interpretations It is arguable that this language does not provide reasonable guidance for
individuals to obey the law and for the law to be consistently enforced
Section 8 of the Charter provides that ldquoEveryone has the right to be secure against
unreasonable search or seizurerdquo A warrantless search or seizure is only reasonable if the
search was authorized by law the law itself is reasonable and the manner in which the
search carried out was reasonable93 The fact that no reasonable or probable suspicions
are needed to carry out a search pursuant to s 3(b) of the PWPA raises some issues The
only prerequisite to such a search is that the person or vehicle being subjected to a search
is entering or attempting to enter a public work
a provision is not intelligible to use the terminology of previous decisions of this Court and therefore it fails to give sufficient indications that could fuel a legal debaterdquo (R v Nova Scotia Pharmaceutical Society [1992] 2 SCR 606 at 639-640) 92 Supra note 87 at 38-1293 R v Nolet [2010] SCJ No 24 at para 21
39
Whether the PWPArsquos s 3(b) authority to undertake warrantless searches is ldquoreasonablerdquo
depends on the reasonableness of the impact on the subject of the search ldquoThe
individuals reasonable expectation of privacy must of course be balanced against the
public interest in effective law enforcementrdquo94 It is harder to justify a warrantless search
where the reasonable expectation of privacy is higher For example interference with
bodily integrity will raise the standard of reasonableness Conversely in situations where
people expect to have a lower level of privacy the standard to prove reasonableness is
lower
One rightfully has some expectation of privacy when in public but it does not rise to the
level of privacy that one expects in onersquos home The expectation of privacy further
decreases when one attempts to enter a ldquopublic workrdquo especially in the context of a
secured barrier to an intergovernmental conference
Section 9 of the Charter provides that ldquoEveryone has the right not to be arbitrarily
detained or imprisonedrdquo95 Under s 3(a) of the PWPA a person entering or attempting to
enter or approach a public work must provide his or her name and address and state the
purpose for which he or she desires to enter the public work In order for a guard or
peace officer to carry out this duty the guard or peace officer may ldquostoprdquo the person from
further approaching or entering the public work and the person is not permitted under the
statute to decide not to enter By so doing it is arguable the guard or peace officer has
assumed control over the movement of the individual by a demand or direction The
94 R v Rao [1984] OJ No 3180 at para 79 (CA)95 ldquoDetention under s 9hellipof the Charter refers to a suspension of the individualrsquos liberty interest by a significant physical or psychological restraint Psychological detention is established either where the individual has a legal obligation to comply with the restrictive request or demand or a reasonable person would conclude by reason of the state conduct that he or she had no choice but to complyrdquo (R v Grant [2009] SCJ No 32 at para 44)
40
PWPA provides for a significant legal consequence if the demand or direction is not
followed since ldquoEvery person who neglects or refuses to comply with a request or
direction made under this Act by a guard or peace officer and every person found upon a
public work or any approach thereto without lawful authority the proof whereof lies on
him or her is guilty of an offence and on conviction is liable to a fine of not more than
$500 or to imprisonment for a term of not more than two months or to bothrdquo96
Pursuant to s 3(b) of the PWPA a guard or peace officer may search any person entering
or attempting to enter a public work These searches would necessitate the detention of a
person If a guard or peace officer performs such a search he or she has taken control
over the movement of the person by a demand or direction The same serious legal
consequence results from failing to obey this demand or direction as that which results
from failing to obey the demand or direction pursuant to s 3(a) of the PWPA As a
result ldquodetentionsrdquo could occur pursuant to both s 3(a) and s 3(b) of the PWPA
The question that would need to be addressed in any challenge to the PWPA is whether
the detentions permitted by the PWPA are arbitrary in nature The use of the term ldquoany
approach theretordquo is vague and imprecise A person could be deemed to be on ldquoany
approach theretordquo a great distance from the entrance of a public work and their detention
might very well be arbitrary In addition the fact that the guards and peace officers
determine the boundaries of the ldquoapproachesrdquo which cannot be contested seems
arbitrary as well as who they chose to search
96 It should be noted that not all communications with state authorities and police officers will amount to a detention The question is whether a person may reasonably believe that he or she is free to refuse to comply
41
Section 11(d) of the Charter provides that ldquoAny person charged with an offence has the
right to be presumed innocent until proven guilty according to law in a fair and public
hearing by an independent and impartial tribunalrdquo This requires that the Crown have the
burden of proving the guilt of an individual charged with an offence97 Provisions that
place the burden on the accused to disprove on the balance of probabilities an essential
element of an offence raises s 11(d) concerns because convictions would be possible
even if reasonable doubt existed98 The presumption of innocence is not only infringed
upon by a requirement that an accused disprove an essential element of an offence but
also any requirement on an accused to prove a fact on the balance of probabilities to
avoid conviction
Section 5(1) of the PWPA states that ldquoEvery person who neglects or refuses to comply
with a request or direction made under this Act by a guard or peace officer and every
person found upon a public work or any approach thereto without lawful authority the
proof whereof lies on him or her is guilty of an offence and on conviction is liable to a
fine of not more than $500 or to imprisonment for a term of not more than two months or
to bothrdquo For the offence of being found upon a public work or on any approach to a
public work without lawful authority the burden of proof has been ldquoshiftedrdquo from the
Crown to the accused to prove lawful authority
As the foregoing analysis reveals there are certainly many concerns that arise when one
places the PWPA under the lens of the Charter However the rights and freedoms
provided by the Charter are not absolute They are ldquosubject only to such reasonable
97 R v Oakes [1986] 1 SCR 10398 Ibid at 132
42
limits prescribed by law as can be demonstrably justified in a free and democratic
societyrdquo99
In assessing whether a law which infringes the Charter is saved by s 1 a court examines
both the object of the law and the measures taken to achieve that objective A lawrsquos
objective achieves the status of being sufficiently important to justify overriding a
Charter right only when it is consistent with the values of a free and democratic society
The objective must relate to pressing and substantial concerns and not concerns that are
trivial and must be focussed on ldquothe realization of collective goals of fundamental
importancerdquo100 The measures adopted must be ldquorationally connectedrdquo to the objective of
the law101 The measures ldquoshould impair lsquoas little as possiblersquo the right or freedom in
questionrdquo102 Furthermore there must be ldquoa proportionality between the effects of the
measures which are responsible for limiting the Charter right or freedom and the
objective which has been identified as of lsquosufficient importancersquordquo103
An issue that may affect whether the potential limitation on rights and freedoms of the
PWPA and O Reg 23310 were ldquoprescribed by lawrdquo is whether the regulation was
adequately accessible to the public The Ontario Ombudsman the CCLA and the Ontario
Bar Association (ldquoOBArdquo) all noted a lack of notice regarding O Reg 23310 and its
effects prior to and during the G20 While the text of the regulation was available prior
99 Charter s 1 The Superior Court of Quebec decision of Tremblay v Queacutebec (Attorney General) [2001] JQ No 1504 (CS) involved an interim injunction brought by an applicant who was denied entry into the secured perimeter during the 2001 Summit of the Americas in Queacutebec City The applicant sought an injunction to either eliminate the security barrier or to be given a pass to let him within the secured perimeter Even though the Court held that the erection of the security zone violated the applicantrsquos right to freedom of expression and peaceful assembly The court held that the infringement was ldquodemonstrably justified in a free and democratic societyrdquo100 Supra note 97 at 136101 Ibid at 139102 Ibid103 Ibid
43
to the G20 it was only available on a website not frequently accessed by the public
Since O Reg 23310 was not published in The Ontario Gazette until after it was
revoked it may be that the regulation was not adequately accessible to the public
Reverse onus offences have been found to be ldquorationally connectedrdquo when there is plainly
a rational connection between the proven fact and the fact to be presumed Reverse
onuses have also been upheld when the burden placed on the Crown would be virtually
impossible to meet (such as proving sanity)104 Even if the accused only has the burden
of disproving the fact that heshe did not have lawful authority to be in a public work or
on an approach thereto there may not be a rational connection between the proven fact
and the fact to be presumed
The history of threats and violence at previous intergovernmental conferences
demonstrated that the protection of G20 participants was a pressing and substantial
concern However given the broadness of the PWPA every exercise of it raises the
potential for Charter scrutiny
Recommendation
Given the public policy considerations I have raised regarding the PWPA and Charter
concerns that could arise I recommend that the PWPA be repealed after the Province has
considered potential policy and security gaps as a result of its repeal
B Other uses of the Public Works Protection Act
It appears from my consultations with stakeholder groups that if the PWPA is repealed
104 R v Chaulk [1990] 3 SCR 1303 at 1340
44
there are two areas which may require legislation to provide specific peace officer
powers These two areas are court security and the protection of nuclear power facilities
and other power generating infrastructures
1 Court Security
During my decade as Ontariorsquos Attorney General (1975 to 1985) there were three
murders in provincial courthouses as well as many threats to members of courthouse staff
and others As violent acts in courthouses can be anticipated courtroom security is often
required
Individuals are compelled to go to court for a variety of reasons such as appearing as an
accused as a witness or for jury duty To provide protection to those who work there or
are compelled to attend an adequate level of court security may require a search without
warrant of each and every individual who seeks to enter a courthouse It is not reasonable
to require prior judicial authorization for each search that takes place
The courts have considered the constitutionality of these provisions of the PWPA in
conjunction with section 137 of the Ontario Police Services Act in the context of court
security
Section 137 of the Ontario Police Services Act imposes a responsibility on municipal
police services boards to secure the premises where court proceedings are conducted and
includes
1 Ensuring the security of judges and of persons taking part in or attending proceedings
45
2 During the hours when judges and members of the public are normally present ensuring the security of the premises
3 Ensuring the secure custody of persons in custody who are on or about the premises including persons taken into custody at proceedings
4 Determining appropriate levels of security for the purposes of paragraphs 1 2 and 3
In R v Campanella105 Ms Campanella was attending the John Sopinka Courthouse in
Hamilton At the courthouse there were signs posted stating that those who entered
would be searched for weapons When Ms Campanellarsquos bag was searched marijuana
was found and she was charged with the possession of marijuana She argued that her s
8 Charter protection against unreasonable search and seizure had been violated and the
marijuana discovered during the search should therefore be excluded as evidence The
trial judge and the summary convictions appeal court rejected the section 8 Charter
argument and the appellant appealed to the Ontario Court of Appeal
The Ontario Court of Appeal agreed that ldquogiven the importance of the government
objective and the context in which these searches take place it is reasonable to authorize
warrantless searches of those entering courthouse facilitiesrdquo106 The Court stated ldquothe
only effective way to diminish the risk in a large courthouse is to subject everyone
without prior security clearance to some kind of inspection I can see no other feasible
means of achieving the aimrdquo107
The Court also pointed out the concern relating to the erosion of the benefits and
105 [2002] OJ No 5104 (SCJ) affrsquod [2005] OJ No 1345 (CA) [ldquoCampanellardquo]106 R v Campanella [2005] OJ No 1345 at para 17 (CA)107 Ibid at para 19
46
protections conferred by s 8 of the Charter108
I am sensitive to the concern that we should not erode the benefits and protections of s 8 by gradually sanctioning ever-greater intrusions into privacy because of unfounded fears We should not lightly accept that searches in public places are justified solely because people have become used to them and expect them However the record in this case establishes the justification for the kinds of searches carried out in this case
Ultimately the appeal was dismissed and s 137 of the Police Services Act and s 3(b) of
the PWPA) were held to comply with s 8 of the Charter109
In its consultations with me the OBA similarly stated that the existing nature of court
security is necessary and is generally ldquowell toleratedrdquo At the same time however it
submits that the security regime should not be ldquoshoehornedrdquo into the PWPA regime and
that it would be preferable to provide a legislative framework tailored for the specific
security requirements While the PWPA has been relied upon as support for the exercise
of powers by the police in providing court security the OBA submits that the PWPArsquos
ldquosingle security schemerdquo which declares something a ldquopublic workrdquo is an ldquoawkward
blunt instrument in a world where more specialized tools are necessaryrdquo When
warrantless searches are being done on a routine basis it is advisable to have specific
legislation providing peace officers with such power
Recommendation
Court security legislation is currently in place in many jurisdictions across Canada and
contain provisions that permit warrantless searches of persons wanting to access a
108 Ibid at para 25109 The Court in R v SS [2005] OJ No 5002 (SCJ) agreed with the findings and rationale of the Court of Appeal in Campanella
47
courthouse The constitutional validity of such legislation in Manitoba was upheld by that
provincersquos highest court110
Given the ongoing need for warrantless searches at courthouses the Province of Ontario
should consider specific court security legislation in Ontario to support the security
measures in our courthouses if the PWPA is to be repealed taking into consideration the
responsibilities of the municipal police services boards provided in s 137 of the Police
Services Act This legislation should only be passed after proper notice consultation and
legislative debate
2 Power Generating Infrastructures
It is clear from the submissions that I received from representatives of OPG and the
Canadian Nuclear Safety Commission (ldquoCNSCrdquo) that the PWPA currently plays a role in
providing security officers with the powers to secure power generating infrastructures
including the ability to carry firearms and the ability to stop and require identification
from those in proximity to those nuclear plants
Security is of the utmost importance in protecting a nuclear power plant Members of the
public do not need to access a nuclear or similar power facility unless employed at the
facility or carrying out work for the facility111
The security of areas within nuclear power plants is governed by the Nuclear Security
110 R v Lindsay [2004] MJ No 380 (CA) 111 Though the discussion focuses on nuclear power plants I have been informed that other power generating infrastructures use the PWPA to designate their security officers as guards As a result if the PWPA is repealed it will be necessary to broaden the consultations in relation to these other power generating infrastructures
48
Regulations112 Every nuclear power plant must be located within a ldquoprotected areardquo113
This protected area is the area within a fenced perimeter which is alarmed and
continually patrolled This area must be equipped with devices that employ two
independent systems to detect intrusion into the area114 The Nuclear Security
Regulations also provide detailed specifications for the barrier which must enclose the
protected area115 In addition licensees must ldquoidentify all vital areas and implement
physical protection measures ndash including access control and measures designed to delay
unauthorized accessrdquo116
The Nuclear Security Regulations also provide detailed provisions regarding entry into
protected areas No person can ldquoenter a protected area without physical proof of the
recorded authorization of the licenseerdquo117 Further to this on entry into a protected area
ldquothat personrsquos identity shall be verified by two separate personnel identity verification
systems one of which is an access card reader and the other of which is a biometric
personnel identity verification devicerdquo118 Licensees must also ldquoensure that vehicle
portals are used for the entry and exit of land vehicles into and from a protected areardquo119
Physical protection measures are also required to reduce the chance of a forced land
vehicle entry into a protected area120
The power to conduct searches upon entry to a protected area is also provided by the
112 SOR2000-209 113 Ibid s 8114 Ibid s 11(a)(i)115 Ibid s 9116 Ibid s 141117 Ibid s 17(1)118 Ibid s 171119 Ibid s 91(1)120 Ibid s 91(4)
49
Nuclear Security Regulations Signs must be posted that are visible to people about to
enter the protected area stating that they must allow a nuclear security officer (ldquoNSOrdquo) to
ldquosearch them and everything in their possession including any land vehicle for weapons
and explosive substancesrdquo121 In addition when leaving the protected area people must
allow NSOs to ldquosearch them and everything in their possession including any land
vehicle for Category I II or III nuclear materialrdquo122 People are not permitted to enter or
leave a protected area unless these searches are carried out123 The Nuclear Security
Regulations provide for the method of search including ldquoa hand-held scanner a walk-
through scanner or any similar devicerdquo124 In addition if an NSO determines it
necessary a frisk search can be carried out by a person of the same sex125
I have been informed that the area outside of but adjacent to the ldquoprotected areardquo is
referred to as the ldquocontrolled areardquo This area includes roadways and waterways within
the nuclear facilityrsquos property boundaries adjacent to or in close proximity to the nuclear
power plantrsquos protected area and may be generally accessible to the public
As a result of the September 11 2001 terrorist attacks the Nuclear Security Regulations
were amended to require that high security nuclear facilities maintain an on-site armed
Nuclear Response Force (ldquoNRFrdquo)126 The NRF is composed of specialized NSOs
Section 32 of the Nuclear Security Regulations requires the NRF to be capable of making
an effective intervention taking into account the threat
121 Ibid s 27(1)(a)122 Ibid s 27(1)(b)123 Ibid s 27(2)124 Ibid s 27(5)(a)125 Ibid s 27(5)(b)126 Ibid s 32
50
Members of the NRF are mandated by the Nuclear Security Regulations to be ldquotrained in
the use of firearms authorized to carry firearms in Canada and qualified to use themrdquo127
However to satisfy this requirement the NRF resorts to the PWPA since the federal
regulations do not authorize the NRF to carry firearms without a licence However
under s 2(1) of the PWPA NSOs are designated as ldquoguardsrdquo with the powers of a peace
officer most significantly to carry and use firearms without having to be licensed128
Such a designation also enables the OPG to acquire and dispose of firearms
In the consultations I had with the OPG and the CNSC they advised me that NSOs
receive training equivalent to Canadian police standards and that NRF officers receive
training equivalent to federal and provincial police tactical team requirements
Another aspect of the PWPA used to secure nuclear power plants relates to powers
exercised by NSOs in ldquocontrolled areasrdquo The federal regulations do not provide the
NSOs with any power to demand identification within this area However pursuant to
the PWPA as appointed ldquoguardsrdquo the NSOs have the power to demand identity
verification in the controlled area They also have the authority to arrest anyone who
obstructs NSOs in the performance of their duties under the PWPA
In addition to using the PWPA to secure the controlled areas I have been advised by the
OPG that NSOs use powers pursuant to the PWPA to secure areas within 100 metres of a
nuclear facilityrsquos property line immediately adjacent to the controlled area These powers
are exercised under the broad language of the PWPA regarding ldquoapproaches to public
127 Ibid s 1 (on-site nuclear response force definition)128 Section 11707 of the Criminal Code exempts peace officers from licensing requirements for possessing firearms and other prohibited and restricted weapons
51
worksrdquo This is an illustration of the problem with the vagueness of this language in the
legislation As these powers are exercised on public land they could be challenged as a
potential infringement on individual rights and freedoms However I have been advised
that there have been no such incidents to date The need to ensure the security of these
facilities must be taken into the balance
NSOs must be able to monitor and control access to the controlled areas and areas close
to a nuclear power plantrsquos property line This provides for a more secure perimeter
around these facilities They need authority to challenge individuals acting in a suspicious
manner or conducting surveillance of nuclear facilities The OPG has informed me that
areas outside a nuclear facilityrsquos property line immediately adjacent to the controlled
area are still close enough to take advantage of the short distance to conduct intelligence
using high-powered surveillance equipment These nuclear power plants are not located
on isolated islands and are therefore vulnerable Both the Pickering Nuclear Generating
Station and the Darlington Nuclear Generating Station operate within major urban areas
being 30 km and 60 km east of downtown Toronto respectively I am advised that
previous events such as ldquoThe Toronto 18rdquo129 have shown that those intent on targeting
vital infrastructure such as power generating facilities often use reconnaissance and
intelligence gathering as precursor tactics
Recommendation
If the PWPA is to be repealed it is imperative that those who secure our nuclear and
power generating facilities be given the requisite specific legislative powers to do so
129 See for example ldquoLast 2 Toronto 18 accused found guiltyrdquo CBC News (23 June 2010) online cbcca lthttpwwwcbccanewscanadatorontostory20100623toronto-18-verdicthtmlgt
52
The source for these powers should be set out in the federal Nuclear Security
Regulations However if this is not a desired option the Government of Ontario must
consider specific legislation setting out the specific powers required to properly secure
these facilities and the specific location in which these powers can be exercised Such
legislation should not be passed without proper notice consultation and legislative
debate
53
SECTION 6 CONCLUSION
The PWPA was enacted in 1939 to support the war effort At the time the protection of
Ontariorsquos hydroelectric facilities from sabotage was of particular concern Since then the
PWPA has been used to provide the legal foundation for the powers exercised by the
police in providing court security and even more recently by the OPG in securing
nuclear power facilities In June 2010 the PWPA was used to provide powers to secure
intergovernmental conferences The vagueness of the PWPA permits it to be used in
situations when it is arguably not necessary and potentially abusive In my view the
PWPA has been used for purposes beyond its original intent
The time for the PWPA seems to have passed If the Government of Ontario enacts as I
have suggested specific legislation to provide for courthouse security and power
generating infrastructure security it would appear that there is no longer a need for the
PWPA I am also mindful of the existence of counter-terrorism and emergencies
legislation to deal with these situations as they arise
ldquoIn determining the boundaries of police powers caution is required to ensure the proper
balance between preventing excessive intrusions on an individualrsquos liberty and privacy
and enabling the police to do what is reasonably necessary to perform their duties in
protecting the publicrdquo130 The overly broad and vague language of the PWPA does not
strike this required balance with individual rights and freedoms
The late Justice Jackson of the United States Supreme Court stated that every
emergency power once conferred ldquolies about like a loaded weapon ready for the hand of
130 R v Clayton [2007] 2 SCR 725 at 742
54
any authority that can bring forward a plausible claim of an urgent needrdquo131 The need to
protect the public must be balanced with the requirement to preserve fundamental rights
and freedoms
Yet at the same time ldquoCanadians are entitled to demand the best public order policing
possible from their governmentrdquo132 There is no question that we live in a different world
post 911 We live in difficult times with constant threats both domestically and from
abroad The police clearly need to be given adequate powers to carry out their duties
The police use their expertise on a daily basis to assess the powers they require In
instances when they take action that exceeds their powers their actions are examined by
various mandated bodies This process I believe results in the proper balance between
police powers and individual rights and freedoms Therefore any legislation that purports
to grant special police powers must be specific and direct and developed in consultation
with stakeholders and tested through thorough debate in our transparent democratic
system
131 Korematsu v United States 323 US 214 (1944)132 Supra note 26 p 8
55
maintaining a proper level of security while recognizing that democratic values and
security issues can conflict where public order is at issue It is important to highlight that
provincial legislation exists dealing with both terrorism threats and emergency situations
I have been informed that federal and provincial counter-terrorism plans exist that
address preventing and responding to acts of terrorism
The Police Services Act regulations mandate police forces to establish procedures
consistent with federal and provincial counter-terrorism plans61 and to have policies with
respect to counter-terrorism62 In addition the Emergency Management and Civil
Protection Act allows for orders to be made in situations specifically designated an
ldquoemergencyrdquo63 by the Lieutenant Governor in Council or the Premier that regulate or
prohibit travel and movement to from or within any specified area64 Therefore the
PWPA is not needed to deal with these emergency situations as specific more recent
emergency legislation is in place for that very purpose
C Gaps in Canadian Police Powers
The Ministry of Community Safety and Correctional Services provided me with an
interesting article published in 2010 entitled ldquoThe Gap in Canadian Police Powers
61 Adequacy and Effectiveness of Police Services O Reg 399 s 2862 Ibid s 2963 Section 1 of the Emergency Management and Civil Protection Act defines an ldquoemergencyrdquo as ldquoemergencyrdquo means a situation or an impending situation that constitutes a danger of major proportions that could result in serious harm to persons or substantial damage to property and that is caused by the forces of nature a disease or other health risk an accident or an act whether intentional or otherwise (ldquosituation drsquourgencerdquo)64 RSO 1990 c E9 s 702(4)
31
Canada needs lsquoPublic Order Policingrsquo Legislationrdquo and co-authored by Wesley Pue and
Robert Diab65
This article was prompted by the debate over the cost nature and extent of security to be
employed at the Vancouver 2010 Winter Olympics The authors criticized the fact that
policing authorities in Canada ldquolack specific statutory authorization to take measures
commonly thought necessary to their missionrdquo66 These measures included security
fences in public areas designated protest areas restricted access to public space police
surveillance and searches without cause
The authors recognize that such powers may be necessary but note that ldquono legislature
has ever expressly conferred such powers on policing authorities outside the context of
international intergovernmental conferences Nor does the common law accord such
powers to state officials on its ownrdquo67 I respectfully disagree with this latter statement
It is my view the police have powers pursuant to the common law and statute as I have
discussed in the preceding section
The authors referred to R v Knowlton68 which I have previously discussed While the
authors give Knowlton a very narrow interpretation stating that ldquoits binding principle is a
good deal narrower than the words taken out of context might suggestrdquo69 I however am
of the view that the decision supports the proposition that police have a broad range of
65 Wesley Pue and Robert Diab ldquoThe Gap In Canadian Police Powers Canada Needs lsquoPublic Order Policingrsquo Legislationrdquo (2010) 28 Windsor Rev Legal Soc Issues 87 Wesley Pue is a professor of legal history at the University of British Columbia and Robert Diab is a PhD candidate at the UBC Faculty of Law66 Ibid p 8867 Ibid68 Supra note 3469 Supra note 65 p 92
32
responsibilities with deep historical roots in the common law and codified in statute a
position shared by the Federal Government when it introduced amendments to the
FMIOA The actions of the police in Knowlton were necessarily incidental to their
common law police duties and powers
The authors conclude that this ldquoauthority of police to create zones of exclusion either as
an incident of the general and ancient duties of constableshelliphas never been established in
the courtsrdquo70 I am of the view however that the role of the police in establishing
security zones relating to a crime a serious accident or other emergency is a routine and
well-accepted use of police powers pursuant to their common law and statutory duties I
am not suggesting that this common law authority permits the police to establish security
zones ldquofor the proper functioning of any intergovernmental conference in which two or
more states participaterdquo71 larger than necessary to fulfill their purpose The FMIOA as
amended in 2002 provides the RCMP with ldquoprimary responsibility to ensure the security
for the proper functioning of the intergovernmental conferencerdquo72 It is interesting
however that when the Federal Government was enacting this specific authority the
legislative debates indicated that the government was merely clarifying ldquoin statute the
present common law authority for police to provide security and protection for high
profile international eventsrdquo73
Security perimeters are routinely erected by police in the context of the commission of a
crime motor vehicle and other accidents as well as the Santa Claus parade and other
70 Ibid p 9671 Supra note 8 s 101(1)72 Ibid73 Supra note 58
33
parades It would in my view be quite impractical and unnecessary to legislate an
extensive code of police powers given their common law and statutory responsibilities to
generally maintain public order It is not advisable in my opinion to be prescriptive in
any way regarding what actions the police can take since they must assess what the
situation warrants while at the same time considering individual rights and freedoms
The details of any police response to an emergency must be tailored to the exigencies
related to the situation
The police clearly have common law and statutory authority to conduct warrantless
searches in specific situations (ldquoin exigent circumstancesrdquo)74 However when
warrantless searches must be carried out on a regular routine basis the police are acting
more like full time security guards and there should be specific statutory authority
provided to give such powers
I certainly accept the general proposition the authors assert that the mobility rights of
citizens should not be unreasonably or unfairly dealt with However one only need be
aware of the massive amount of construction taking place on the streets of Toronto as this
Report is being written to appreciate that it is not always reasonable to expect that ldquothe
rights of businesses homeowners and ordinary citizens to go about their routine
activities without interruptionrdquo75 will go unhindered While generally desirable it cannot
be legally guaranteed At the same time the authors do concede that ldquoimportant as they
74 Supra note 42 s 4871175 Supra note 65 p 89
34
are the rights of assembly movement and protest are not unqualified They can ndash and
should ndash be balanced against other important public needsrdquo76
In my view public policing at times requires innovation as it often benefits from
creative problem solving If police abuse their common law powers related to ldquopublic
order policingrdquo they are accountable to a multiplicity of authorities and the rule of law
most particularly the Charter The legal rights outlined in the Charter such as ldquothe
principles of fundamental justicerdquo77 security ldquoagainst unreasonable search and seizurerdquo78
and ldquothe right not to be arbitrarily detained or imprisonedrdquo79 are described very
generally However they were chosen deliberately as it was recognized that in each case
there is an inherent tension between imposing security measures and fundamental rights
and freedoms Determining which is paramount will be based on the facts of each case
76 Ibid p 9177 Canadian Charter of Rights and Freedoms s 7 Part I of the Constitution Act 1982 being Schedule B to the Canada Act 1982 (UK) 1982 c 1178 Ibid s 879 Ibid s 9
35
SECTION 5 LEGAL ANALYSIS OF THE PUBLIC WORKS PROTECTION ACT
A Legal Analysis of the Legislation
Many stakeholders have questioned the constitutional validity of the PWPA and O Reg
23310 The Ontario Ombudsman seriously questioned whether O Reg 23310 could
pass ldquoconstitutional musterrdquo80 The CCLA suggested that the broad police powers
granted under the PWPA were inconsistent with the Charter81
To the same effect were comments made by Premier Dalton McGuinty who described
the PWPA as ldquoan archaic law that was used to undermine Torontoniansrsquo civil rights
during the G20rdquo82 He elaborated83
The issue is whether itrsquos appropriate given our present-day values and given an old law which I am confident doesnrsquot strike the balance that you and I would want today in terms of public safety and individual freedom of expressionhellipWhen you start talking about civil rights individual freedoms yoursquore talking about those things that in fact define us as a free and democratic societyhellipItrsquos something that is real and meaningful and important to all of us
The Terms of Reference for this Review do not require that I conduct a constitutional
analysis of the PWPA I have however been asked to consider areas for reform and if
appropriate make specific recommendations for amendment or repeal This does require
that I therefore consider whether the legislation may be vulnerable to constitutional
challenge
Section 2(b) of the Charter guarantees everyone the fundamental freedom of expression
The definition of ldquoexpressionrdquo has been interpreted broadly ldquoActivity is expressive if it
80 Supra note 32 at para 23381 Supra note 26 p 982 Robert Benzie and Rob Ferguson ldquoMcGuinty shifts focus to fixing G20 lawrdquo Toronto Star (10 December 2010) online thestarcom lthttpwwwthestarcomnewscanadaarticle905436--mcguinty-shifts-focus-to-fixing-g20-lawgt 83 Ibid
36
attempts to convey meaningrdquo84 While freedom of expression is not absolute there is
very little that is not considered expression However expression that advocates violence
is not protected under s 2(b)85
The Supreme Court of Canada in Committee for the Commonwealth of Canada v
Canada held that s 2(b) ldquodoes not encompass the right to use any and all government
property for purposes of disseminating onersquos views on public matters but I have no doubt
that it does include the right to use for that purpose streets and parks which are dedicated
to the use of the public subject no doubt to reasonable regulation to ensure their
continued use for the purposes to which they are dedicatedrdquo86 It seems clear that
protesting in public streets is a form of expression protected by s 2(b) Protesting at an
intergovernmental conference is clearly expressive in nature
In challenges alleging that a statute contravenes s 2(b) of the Charter a court would
examine whether the purpose or effect of a law contravenes section 2(b)87 There is no
reason to suggest that the purpose of the PWPA was to infringe the freedom of
expression The purpose of the PWPA is to protect important public infrastructures A
court would then have to consider whether the effect of the PWPA may have resulted in
an infringement of freedom of expression
O Reg 23310 defined significant portions of downtown Toronto as a ldquopublic workrdquo
Section 3(c) of the PWPA allows peace officers to refuse entry into public works which
therefore limits the areas in which protesters could express themselves By creating the
84 Irwin Toy Ltd v Queacutebec (Attorney General) [1989] 1 SCR 927 at 96885 Ibid at 97086 [1991] 1 SCR 139 at 165-16687 Peter Hogg Constitutional Law of Canada loose-leaf (consulted on 7 January 2011) 5th ed (Toronto Thomson Reuters Canada Limited 2007) at 43-6
37
relatively large security perimeter designated by the regulation individuals may allege
they were not permitted to communicate directly with those they were protesting against
Furthermore individuals could not communicate in public places such as public streets
where the right to freedom of expression has previously been found to exist88
Commissioner Ted Hughes completed an interim report following a public hearing into
the complaints regarding events that took place with respect to the Asia Pacific Economic
Cooperation (APEC) Conference in Vancouver British Columbia in November 1997
Commissioner Hughes recommended that generous opportunity should be afforded to
peaceful protesters to be seen in their protest activities by guests at the event89
Section 7 of the Charter provides that ldquoEveryone has the right to life liberty and security
of the person and the right not to be deprived thereof except in accordance with the
principles of fundamental justicerdquo The PWPA raises issues regarding the liberty and
security of the person in providing for warrantless searches and stopping for
identification Furthermore vague laws offend two fundamental values of our legal
system90 Firstly individuals are not provided with sufficient guidance as to what
behaviour a law prohibits Secondly those in charge of enforcing the law are not
provided with clear guidance as to how to enforce it A vague law can lead to inconsistent
and arbitrary enforcement91
88 Supra note 86 89 Canada Commission for Public Complaints Against the RCMP APEC ndash Commission Interim Report (31 July 2001) at s 3111 (Commissioner Ted Hughes QC) online Commission for Public Complaints Against the RCMP lthttpwwwcpc-cppgccaprrrepphrapecapec-31-engaspxgt90 Supra note 87 at 47-60 91 ldquoA vague provision does not provide an adequate basis for legal debate that is for reaching a conclusion as to its meaning by reasoned analysis applying legal criteria It does not sufficiently delineate any area of risk and thus can provide neither fair notice to the citizen nor a limitation of enforcement discretion Such
38
As described by Professor Hogg92
The requirement that any limit on rights be prescribed by law reflects two values that are basic to constitutionalism or the rule of law First in order to preclude arbitrary and discriminatory action by government officials all official action in derogation of rights must be authorized by law Secondly citizens must have reasonable opportunity to know what is prohibited so that they can act accordingly Both these values are satisfied by a law that fulfils two requirements (1) the law must be adequately accessible to the public and (2) the law must be formulated with sufficient precision to enable people to regulate their conduct by it and to provide guidance to those who apply the law
As I stated earlier the phrase ldquoany approach theretordquo contained in s 3(a) of the PWPA is
potentially vague No criteria are provided to assist in determining when one is on ldquoany
approach theretordquo A phrase such as ldquoany approach theretordquo is subject to many potential
interpretations It is arguable that this language does not provide reasonable guidance for
individuals to obey the law and for the law to be consistently enforced
Section 8 of the Charter provides that ldquoEveryone has the right to be secure against
unreasonable search or seizurerdquo A warrantless search or seizure is only reasonable if the
search was authorized by law the law itself is reasonable and the manner in which the
search carried out was reasonable93 The fact that no reasonable or probable suspicions
are needed to carry out a search pursuant to s 3(b) of the PWPA raises some issues The
only prerequisite to such a search is that the person or vehicle being subjected to a search
is entering or attempting to enter a public work
a provision is not intelligible to use the terminology of previous decisions of this Court and therefore it fails to give sufficient indications that could fuel a legal debaterdquo (R v Nova Scotia Pharmaceutical Society [1992] 2 SCR 606 at 639-640) 92 Supra note 87 at 38-1293 R v Nolet [2010] SCJ No 24 at para 21
39
Whether the PWPArsquos s 3(b) authority to undertake warrantless searches is ldquoreasonablerdquo
depends on the reasonableness of the impact on the subject of the search ldquoThe
individuals reasonable expectation of privacy must of course be balanced against the
public interest in effective law enforcementrdquo94 It is harder to justify a warrantless search
where the reasonable expectation of privacy is higher For example interference with
bodily integrity will raise the standard of reasonableness Conversely in situations where
people expect to have a lower level of privacy the standard to prove reasonableness is
lower
One rightfully has some expectation of privacy when in public but it does not rise to the
level of privacy that one expects in onersquos home The expectation of privacy further
decreases when one attempts to enter a ldquopublic workrdquo especially in the context of a
secured barrier to an intergovernmental conference
Section 9 of the Charter provides that ldquoEveryone has the right not to be arbitrarily
detained or imprisonedrdquo95 Under s 3(a) of the PWPA a person entering or attempting to
enter or approach a public work must provide his or her name and address and state the
purpose for which he or she desires to enter the public work In order for a guard or
peace officer to carry out this duty the guard or peace officer may ldquostoprdquo the person from
further approaching or entering the public work and the person is not permitted under the
statute to decide not to enter By so doing it is arguable the guard or peace officer has
assumed control over the movement of the individual by a demand or direction The
94 R v Rao [1984] OJ No 3180 at para 79 (CA)95 ldquoDetention under s 9hellipof the Charter refers to a suspension of the individualrsquos liberty interest by a significant physical or psychological restraint Psychological detention is established either where the individual has a legal obligation to comply with the restrictive request or demand or a reasonable person would conclude by reason of the state conduct that he or she had no choice but to complyrdquo (R v Grant [2009] SCJ No 32 at para 44)
40
PWPA provides for a significant legal consequence if the demand or direction is not
followed since ldquoEvery person who neglects or refuses to comply with a request or
direction made under this Act by a guard or peace officer and every person found upon a
public work or any approach thereto without lawful authority the proof whereof lies on
him or her is guilty of an offence and on conviction is liable to a fine of not more than
$500 or to imprisonment for a term of not more than two months or to bothrdquo96
Pursuant to s 3(b) of the PWPA a guard or peace officer may search any person entering
or attempting to enter a public work These searches would necessitate the detention of a
person If a guard or peace officer performs such a search he or she has taken control
over the movement of the person by a demand or direction The same serious legal
consequence results from failing to obey this demand or direction as that which results
from failing to obey the demand or direction pursuant to s 3(a) of the PWPA As a
result ldquodetentionsrdquo could occur pursuant to both s 3(a) and s 3(b) of the PWPA
The question that would need to be addressed in any challenge to the PWPA is whether
the detentions permitted by the PWPA are arbitrary in nature The use of the term ldquoany
approach theretordquo is vague and imprecise A person could be deemed to be on ldquoany
approach theretordquo a great distance from the entrance of a public work and their detention
might very well be arbitrary In addition the fact that the guards and peace officers
determine the boundaries of the ldquoapproachesrdquo which cannot be contested seems
arbitrary as well as who they chose to search
96 It should be noted that not all communications with state authorities and police officers will amount to a detention The question is whether a person may reasonably believe that he or she is free to refuse to comply
41
Section 11(d) of the Charter provides that ldquoAny person charged with an offence has the
right to be presumed innocent until proven guilty according to law in a fair and public
hearing by an independent and impartial tribunalrdquo This requires that the Crown have the
burden of proving the guilt of an individual charged with an offence97 Provisions that
place the burden on the accused to disprove on the balance of probabilities an essential
element of an offence raises s 11(d) concerns because convictions would be possible
even if reasonable doubt existed98 The presumption of innocence is not only infringed
upon by a requirement that an accused disprove an essential element of an offence but
also any requirement on an accused to prove a fact on the balance of probabilities to
avoid conviction
Section 5(1) of the PWPA states that ldquoEvery person who neglects or refuses to comply
with a request or direction made under this Act by a guard or peace officer and every
person found upon a public work or any approach thereto without lawful authority the
proof whereof lies on him or her is guilty of an offence and on conviction is liable to a
fine of not more than $500 or to imprisonment for a term of not more than two months or
to bothrdquo For the offence of being found upon a public work or on any approach to a
public work without lawful authority the burden of proof has been ldquoshiftedrdquo from the
Crown to the accused to prove lawful authority
As the foregoing analysis reveals there are certainly many concerns that arise when one
places the PWPA under the lens of the Charter However the rights and freedoms
provided by the Charter are not absolute They are ldquosubject only to such reasonable
97 R v Oakes [1986] 1 SCR 10398 Ibid at 132
42
limits prescribed by law as can be demonstrably justified in a free and democratic
societyrdquo99
In assessing whether a law which infringes the Charter is saved by s 1 a court examines
both the object of the law and the measures taken to achieve that objective A lawrsquos
objective achieves the status of being sufficiently important to justify overriding a
Charter right only when it is consistent with the values of a free and democratic society
The objective must relate to pressing and substantial concerns and not concerns that are
trivial and must be focussed on ldquothe realization of collective goals of fundamental
importancerdquo100 The measures adopted must be ldquorationally connectedrdquo to the objective of
the law101 The measures ldquoshould impair lsquoas little as possiblersquo the right or freedom in
questionrdquo102 Furthermore there must be ldquoa proportionality between the effects of the
measures which are responsible for limiting the Charter right or freedom and the
objective which has been identified as of lsquosufficient importancersquordquo103
An issue that may affect whether the potential limitation on rights and freedoms of the
PWPA and O Reg 23310 were ldquoprescribed by lawrdquo is whether the regulation was
adequately accessible to the public The Ontario Ombudsman the CCLA and the Ontario
Bar Association (ldquoOBArdquo) all noted a lack of notice regarding O Reg 23310 and its
effects prior to and during the G20 While the text of the regulation was available prior
99 Charter s 1 The Superior Court of Quebec decision of Tremblay v Queacutebec (Attorney General) [2001] JQ No 1504 (CS) involved an interim injunction brought by an applicant who was denied entry into the secured perimeter during the 2001 Summit of the Americas in Queacutebec City The applicant sought an injunction to either eliminate the security barrier or to be given a pass to let him within the secured perimeter Even though the Court held that the erection of the security zone violated the applicantrsquos right to freedom of expression and peaceful assembly The court held that the infringement was ldquodemonstrably justified in a free and democratic societyrdquo100 Supra note 97 at 136101 Ibid at 139102 Ibid103 Ibid
43
to the G20 it was only available on a website not frequently accessed by the public
Since O Reg 23310 was not published in The Ontario Gazette until after it was
revoked it may be that the regulation was not adequately accessible to the public
Reverse onus offences have been found to be ldquorationally connectedrdquo when there is plainly
a rational connection between the proven fact and the fact to be presumed Reverse
onuses have also been upheld when the burden placed on the Crown would be virtually
impossible to meet (such as proving sanity)104 Even if the accused only has the burden
of disproving the fact that heshe did not have lawful authority to be in a public work or
on an approach thereto there may not be a rational connection between the proven fact
and the fact to be presumed
The history of threats and violence at previous intergovernmental conferences
demonstrated that the protection of G20 participants was a pressing and substantial
concern However given the broadness of the PWPA every exercise of it raises the
potential for Charter scrutiny
Recommendation
Given the public policy considerations I have raised regarding the PWPA and Charter
concerns that could arise I recommend that the PWPA be repealed after the Province has
considered potential policy and security gaps as a result of its repeal
B Other uses of the Public Works Protection Act
It appears from my consultations with stakeholder groups that if the PWPA is repealed
104 R v Chaulk [1990] 3 SCR 1303 at 1340
44
there are two areas which may require legislation to provide specific peace officer
powers These two areas are court security and the protection of nuclear power facilities
and other power generating infrastructures
1 Court Security
During my decade as Ontariorsquos Attorney General (1975 to 1985) there were three
murders in provincial courthouses as well as many threats to members of courthouse staff
and others As violent acts in courthouses can be anticipated courtroom security is often
required
Individuals are compelled to go to court for a variety of reasons such as appearing as an
accused as a witness or for jury duty To provide protection to those who work there or
are compelled to attend an adequate level of court security may require a search without
warrant of each and every individual who seeks to enter a courthouse It is not reasonable
to require prior judicial authorization for each search that takes place
The courts have considered the constitutionality of these provisions of the PWPA in
conjunction with section 137 of the Ontario Police Services Act in the context of court
security
Section 137 of the Ontario Police Services Act imposes a responsibility on municipal
police services boards to secure the premises where court proceedings are conducted and
includes
1 Ensuring the security of judges and of persons taking part in or attending proceedings
45
2 During the hours when judges and members of the public are normally present ensuring the security of the premises
3 Ensuring the secure custody of persons in custody who are on or about the premises including persons taken into custody at proceedings
4 Determining appropriate levels of security for the purposes of paragraphs 1 2 and 3
In R v Campanella105 Ms Campanella was attending the John Sopinka Courthouse in
Hamilton At the courthouse there were signs posted stating that those who entered
would be searched for weapons When Ms Campanellarsquos bag was searched marijuana
was found and she was charged with the possession of marijuana She argued that her s
8 Charter protection against unreasonable search and seizure had been violated and the
marijuana discovered during the search should therefore be excluded as evidence The
trial judge and the summary convictions appeal court rejected the section 8 Charter
argument and the appellant appealed to the Ontario Court of Appeal
The Ontario Court of Appeal agreed that ldquogiven the importance of the government
objective and the context in which these searches take place it is reasonable to authorize
warrantless searches of those entering courthouse facilitiesrdquo106 The Court stated ldquothe
only effective way to diminish the risk in a large courthouse is to subject everyone
without prior security clearance to some kind of inspection I can see no other feasible
means of achieving the aimrdquo107
The Court also pointed out the concern relating to the erosion of the benefits and
105 [2002] OJ No 5104 (SCJ) affrsquod [2005] OJ No 1345 (CA) [ldquoCampanellardquo]106 R v Campanella [2005] OJ No 1345 at para 17 (CA)107 Ibid at para 19
46
protections conferred by s 8 of the Charter108
I am sensitive to the concern that we should not erode the benefits and protections of s 8 by gradually sanctioning ever-greater intrusions into privacy because of unfounded fears We should not lightly accept that searches in public places are justified solely because people have become used to them and expect them However the record in this case establishes the justification for the kinds of searches carried out in this case
Ultimately the appeal was dismissed and s 137 of the Police Services Act and s 3(b) of
the PWPA) were held to comply with s 8 of the Charter109
In its consultations with me the OBA similarly stated that the existing nature of court
security is necessary and is generally ldquowell toleratedrdquo At the same time however it
submits that the security regime should not be ldquoshoehornedrdquo into the PWPA regime and
that it would be preferable to provide a legislative framework tailored for the specific
security requirements While the PWPA has been relied upon as support for the exercise
of powers by the police in providing court security the OBA submits that the PWPArsquos
ldquosingle security schemerdquo which declares something a ldquopublic workrdquo is an ldquoawkward
blunt instrument in a world where more specialized tools are necessaryrdquo When
warrantless searches are being done on a routine basis it is advisable to have specific
legislation providing peace officers with such power
Recommendation
Court security legislation is currently in place in many jurisdictions across Canada and
contain provisions that permit warrantless searches of persons wanting to access a
108 Ibid at para 25109 The Court in R v SS [2005] OJ No 5002 (SCJ) agreed with the findings and rationale of the Court of Appeal in Campanella
47
courthouse The constitutional validity of such legislation in Manitoba was upheld by that
provincersquos highest court110
Given the ongoing need for warrantless searches at courthouses the Province of Ontario
should consider specific court security legislation in Ontario to support the security
measures in our courthouses if the PWPA is to be repealed taking into consideration the
responsibilities of the municipal police services boards provided in s 137 of the Police
Services Act This legislation should only be passed after proper notice consultation and
legislative debate
2 Power Generating Infrastructures
It is clear from the submissions that I received from representatives of OPG and the
Canadian Nuclear Safety Commission (ldquoCNSCrdquo) that the PWPA currently plays a role in
providing security officers with the powers to secure power generating infrastructures
including the ability to carry firearms and the ability to stop and require identification
from those in proximity to those nuclear plants
Security is of the utmost importance in protecting a nuclear power plant Members of the
public do not need to access a nuclear or similar power facility unless employed at the
facility or carrying out work for the facility111
The security of areas within nuclear power plants is governed by the Nuclear Security
110 R v Lindsay [2004] MJ No 380 (CA) 111 Though the discussion focuses on nuclear power plants I have been informed that other power generating infrastructures use the PWPA to designate their security officers as guards As a result if the PWPA is repealed it will be necessary to broaden the consultations in relation to these other power generating infrastructures
48
Regulations112 Every nuclear power plant must be located within a ldquoprotected areardquo113
This protected area is the area within a fenced perimeter which is alarmed and
continually patrolled This area must be equipped with devices that employ two
independent systems to detect intrusion into the area114 The Nuclear Security
Regulations also provide detailed specifications for the barrier which must enclose the
protected area115 In addition licensees must ldquoidentify all vital areas and implement
physical protection measures ndash including access control and measures designed to delay
unauthorized accessrdquo116
The Nuclear Security Regulations also provide detailed provisions regarding entry into
protected areas No person can ldquoenter a protected area without physical proof of the
recorded authorization of the licenseerdquo117 Further to this on entry into a protected area
ldquothat personrsquos identity shall be verified by two separate personnel identity verification
systems one of which is an access card reader and the other of which is a biometric
personnel identity verification devicerdquo118 Licensees must also ldquoensure that vehicle
portals are used for the entry and exit of land vehicles into and from a protected areardquo119
Physical protection measures are also required to reduce the chance of a forced land
vehicle entry into a protected area120
The power to conduct searches upon entry to a protected area is also provided by the
112 SOR2000-209 113 Ibid s 8114 Ibid s 11(a)(i)115 Ibid s 9116 Ibid s 141117 Ibid s 17(1)118 Ibid s 171119 Ibid s 91(1)120 Ibid s 91(4)
49
Nuclear Security Regulations Signs must be posted that are visible to people about to
enter the protected area stating that they must allow a nuclear security officer (ldquoNSOrdquo) to
ldquosearch them and everything in their possession including any land vehicle for weapons
and explosive substancesrdquo121 In addition when leaving the protected area people must
allow NSOs to ldquosearch them and everything in their possession including any land
vehicle for Category I II or III nuclear materialrdquo122 People are not permitted to enter or
leave a protected area unless these searches are carried out123 The Nuclear Security
Regulations provide for the method of search including ldquoa hand-held scanner a walk-
through scanner or any similar devicerdquo124 In addition if an NSO determines it
necessary a frisk search can be carried out by a person of the same sex125
I have been informed that the area outside of but adjacent to the ldquoprotected areardquo is
referred to as the ldquocontrolled areardquo This area includes roadways and waterways within
the nuclear facilityrsquos property boundaries adjacent to or in close proximity to the nuclear
power plantrsquos protected area and may be generally accessible to the public
As a result of the September 11 2001 terrorist attacks the Nuclear Security Regulations
were amended to require that high security nuclear facilities maintain an on-site armed
Nuclear Response Force (ldquoNRFrdquo)126 The NRF is composed of specialized NSOs
Section 32 of the Nuclear Security Regulations requires the NRF to be capable of making
an effective intervention taking into account the threat
121 Ibid s 27(1)(a)122 Ibid s 27(1)(b)123 Ibid s 27(2)124 Ibid s 27(5)(a)125 Ibid s 27(5)(b)126 Ibid s 32
50
Members of the NRF are mandated by the Nuclear Security Regulations to be ldquotrained in
the use of firearms authorized to carry firearms in Canada and qualified to use themrdquo127
However to satisfy this requirement the NRF resorts to the PWPA since the federal
regulations do not authorize the NRF to carry firearms without a licence However
under s 2(1) of the PWPA NSOs are designated as ldquoguardsrdquo with the powers of a peace
officer most significantly to carry and use firearms without having to be licensed128
Such a designation also enables the OPG to acquire and dispose of firearms
In the consultations I had with the OPG and the CNSC they advised me that NSOs
receive training equivalent to Canadian police standards and that NRF officers receive
training equivalent to federal and provincial police tactical team requirements
Another aspect of the PWPA used to secure nuclear power plants relates to powers
exercised by NSOs in ldquocontrolled areasrdquo The federal regulations do not provide the
NSOs with any power to demand identification within this area However pursuant to
the PWPA as appointed ldquoguardsrdquo the NSOs have the power to demand identity
verification in the controlled area They also have the authority to arrest anyone who
obstructs NSOs in the performance of their duties under the PWPA
In addition to using the PWPA to secure the controlled areas I have been advised by the
OPG that NSOs use powers pursuant to the PWPA to secure areas within 100 metres of a
nuclear facilityrsquos property line immediately adjacent to the controlled area These powers
are exercised under the broad language of the PWPA regarding ldquoapproaches to public
127 Ibid s 1 (on-site nuclear response force definition)128 Section 11707 of the Criminal Code exempts peace officers from licensing requirements for possessing firearms and other prohibited and restricted weapons
51
worksrdquo This is an illustration of the problem with the vagueness of this language in the
legislation As these powers are exercised on public land they could be challenged as a
potential infringement on individual rights and freedoms However I have been advised
that there have been no such incidents to date The need to ensure the security of these
facilities must be taken into the balance
NSOs must be able to monitor and control access to the controlled areas and areas close
to a nuclear power plantrsquos property line This provides for a more secure perimeter
around these facilities They need authority to challenge individuals acting in a suspicious
manner or conducting surveillance of nuclear facilities The OPG has informed me that
areas outside a nuclear facilityrsquos property line immediately adjacent to the controlled
area are still close enough to take advantage of the short distance to conduct intelligence
using high-powered surveillance equipment These nuclear power plants are not located
on isolated islands and are therefore vulnerable Both the Pickering Nuclear Generating
Station and the Darlington Nuclear Generating Station operate within major urban areas
being 30 km and 60 km east of downtown Toronto respectively I am advised that
previous events such as ldquoThe Toronto 18rdquo129 have shown that those intent on targeting
vital infrastructure such as power generating facilities often use reconnaissance and
intelligence gathering as precursor tactics
Recommendation
If the PWPA is to be repealed it is imperative that those who secure our nuclear and
power generating facilities be given the requisite specific legislative powers to do so
129 See for example ldquoLast 2 Toronto 18 accused found guiltyrdquo CBC News (23 June 2010) online cbcca lthttpwwwcbccanewscanadatorontostory20100623toronto-18-verdicthtmlgt
52
The source for these powers should be set out in the federal Nuclear Security
Regulations However if this is not a desired option the Government of Ontario must
consider specific legislation setting out the specific powers required to properly secure
these facilities and the specific location in which these powers can be exercised Such
legislation should not be passed without proper notice consultation and legislative
debate
53
SECTION 6 CONCLUSION
The PWPA was enacted in 1939 to support the war effort At the time the protection of
Ontariorsquos hydroelectric facilities from sabotage was of particular concern Since then the
PWPA has been used to provide the legal foundation for the powers exercised by the
police in providing court security and even more recently by the OPG in securing
nuclear power facilities In June 2010 the PWPA was used to provide powers to secure
intergovernmental conferences The vagueness of the PWPA permits it to be used in
situations when it is arguably not necessary and potentially abusive In my view the
PWPA has been used for purposes beyond its original intent
The time for the PWPA seems to have passed If the Government of Ontario enacts as I
have suggested specific legislation to provide for courthouse security and power
generating infrastructure security it would appear that there is no longer a need for the
PWPA I am also mindful of the existence of counter-terrorism and emergencies
legislation to deal with these situations as they arise
ldquoIn determining the boundaries of police powers caution is required to ensure the proper
balance between preventing excessive intrusions on an individualrsquos liberty and privacy
and enabling the police to do what is reasonably necessary to perform their duties in
protecting the publicrdquo130 The overly broad and vague language of the PWPA does not
strike this required balance with individual rights and freedoms
The late Justice Jackson of the United States Supreme Court stated that every
emergency power once conferred ldquolies about like a loaded weapon ready for the hand of
130 R v Clayton [2007] 2 SCR 725 at 742
54
any authority that can bring forward a plausible claim of an urgent needrdquo131 The need to
protect the public must be balanced with the requirement to preserve fundamental rights
and freedoms
Yet at the same time ldquoCanadians are entitled to demand the best public order policing
possible from their governmentrdquo132 There is no question that we live in a different world
post 911 We live in difficult times with constant threats both domestically and from
abroad The police clearly need to be given adequate powers to carry out their duties
The police use their expertise on a daily basis to assess the powers they require In
instances when they take action that exceeds their powers their actions are examined by
various mandated bodies This process I believe results in the proper balance between
police powers and individual rights and freedoms Therefore any legislation that purports
to grant special police powers must be specific and direct and developed in consultation
with stakeholders and tested through thorough debate in our transparent democratic
system
131 Korematsu v United States 323 US 214 (1944)132 Supra note 26 p 8
55
Canada needs lsquoPublic Order Policingrsquo Legislationrdquo and co-authored by Wesley Pue and
Robert Diab65
This article was prompted by the debate over the cost nature and extent of security to be
employed at the Vancouver 2010 Winter Olympics The authors criticized the fact that
policing authorities in Canada ldquolack specific statutory authorization to take measures
commonly thought necessary to their missionrdquo66 These measures included security
fences in public areas designated protest areas restricted access to public space police
surveillance and searches without cause
The authors recognize that such powers may be necessary but note that ldquono legislature
has ever expressly conferred such powers on policing authorities outside the context of
international intergovernmental conferences Nor does the common law accord such
powers to state officials on its ownrdquo67 I respectfully disagree with this latter statement
It is my view the police have powers pursuant to the common law and statute as I have
discussed in the preceding section
The authors referred to R v Knowlton68 which I have previously discussed While the
authors give Knowlton a very narrow interpretation stating that ldquoits binding principle is a
good deal narrower than the words taken out of context might suggestrdquo69 I however am
of the view that the decision supports the proposition that police have a broad range of
65 Wesley Pue and Robert Diab ldquoThe Gap In Canadian Police Powers Canada Needs lsquoPublic Order Policingrsquo Legislationrdquo (2010) 28 Windsor Rev Legal Soc Issues 87 Wesley Pue is a professor of legal history at the University of British Columbia and Robert Diab is a PhD candidate at the UBC Faculty of Law66 Ibid p 8867 Ibid68 Supra note 3469 Supra note 65 p 92
32
responsibilities with deep historical roots in the common law and codified in statute a
position shared by the Federal Government when it introduced amendments to the
FMIOA The actions of the police in Knowlton were necessarily incidental to their
common law police duties and powers
The authors conclude that this ldquoauthority of police to create zones of exclusion either as
an incident of the general and ancient duties of constableshelliphas never been established in
the courtsrdquo70 I am of the view however that the role of the police in establishing
security zones relating to a crime a serious accident or other emergency is a routine and
well-accepted use of police powers pursuant to their common law and statutory duties I
am not suggesting that this common law authority permits the police to establish security
zones ldquofor the proper functioning of any intergovernmental conference in which two or
more states participaterdquo71 larger than necessary to fulfill their purpose The FMIOA as
amended in 2002 provides the RCMP with ldquoprimary responsibility to ensure the security
for the proper functioning of the intergovernmental conferencerdquo72 It is interesting
however that when the Federal Government was enacting this specific authority the
legislative debates indicated that the government was merely clarifying ldquoin statute the
present common law authority for police to provide security and protection for high
profile international eventsrdquo73
Security perimeters are routinely erected by police in the context of the commission of a
crime motor vehicle and other accidents as well as the Santa Claus parade and other
70 Ibid p 9671 Supra note 8 s 101(1)72 Ibid73 Supra note 58
33
parades It would in my view be quite impractical and unnecessary to legislate an
extensive code of police powers given their common law and statutory responsibilities to
generally maintain public order It is not advisable in my opinion to be prescriptive in
any way regarding what actions the police can take since they must assess what the
situation warrants while at the same time considering individual rights and freedoms
The details of any police response to an emergency must be tailored to the exigencies
related to the situation
The police clearly have common law and statutory authority to conduct warrantless
searches in specific situations (ldquoin exigent circumstancesrdquo)74 However when
warrantless searches must be carried out on a regular routine basis the police are acting
more like full time security guards and there should be specific statutory authority
provided to give such powers
I certainly accept the general proposition the authors assert that the mobility rights of
citizens should not be unreasonably or unfairly dealt with However one only need be
aware of the massive amount of construction taking place on the streets of Toronto as this
Report is being written to appreciate that it is not always reasonable to expect that ldquothe
rights of businesses homeowners and ordinary citizens to go about their routine
activities without interruptionrdquo75 will go unhindered While generally desirable it cannot
be legally guaranteed At the same time the authors do concede that ldquoimportant as they
74 Supra note 42 s 4871175 Supra note 65 p 89
34
are the rights of assembly movement and protest are not unqualified They can ndash and
should ndash be balanced against other important public needsrdquo76
In my view public policing at times requires innovation as it often benefits from
creative problem solving If police abuse their common law powers related to ldquopublic
order policingrdquo they are accountable to a multiplicity of authorities and the rule of law
most particularly the Charter The legal rights outlined in the Charter such as ldquothe
principles of fundamental justicerdquo77 security ldquoagainst unreasonable search and seizurerdquo78
and ldquothe right not to be arbitrarily detained or imprisonedrdquo79 are described very
generally However they were chosen deliberately as it was recognized that in each case
there is an inherent tension between imposing security measures and fundamental rights
and freedoms Determining which is paramount will be based on the facts of each case
76 Ibid p 9177 Canadian Charter of Rights and Freedoms s 7 Part I of the Constitution Act 1982 being Schedule B to the Canada Act 1982 (UK) 1982 c 1178 Ibid s 879 Ibid s 9
35
SECTION 5 LEGAL ANALYSIS OF THE PUBLIC WORKS PROTECTION ACT
A Legal Analysis of the Legislation
Many stakeholders have questioned the constitutional validity of the PWPA and O Reg
23310 The Ontario Ombudsman seriously questioned whether O Reg 23310 could
pass ldquoconstitutional musterrdquo80 The CCLA suggested that the broad police powers
granted under the PWPA were inconsistent with the Charter81
To the same effect were comments made by Premier Dalton McGuinty who described
the PWPA as ldquoan archaic law that was used to undermine Torontoniansrsquo civil rights
during the G20rdquo82 He elaborated83
The issue is whether itrsquos appropriate given our present-day values and given an old law which I am confident doesnrsquot strike the balance that you and I would want today in terms of public safety and individual freedom of expressionhellipWhen you start talking about civil rights individual freedoms yoursquore talking about those things that in fact define us as a free and democratic societyhellipItrsquos something that is real and meaningful and important to all of us
The Terms of Reference for this Review do not require that I conduct a constitutional
analysis of the PWPA I have however been asked to consider areas for reform and if
appropriate make specific recommendations for amendment or repeal This does require
that I therefore consider whether the legislation may be vulnerable to constitutional
challenge
Section 2(b) of the Charter guarantees everyone the fundamental freedom of expression
The definition of ldquoexpressionrdquo has been interpreted broadly ldquoActivity is expressive if it
80 Supra note 32 at para 23381 Supra note 26 p 982 Robert Benzie and Rob Ferguson ldquoMcGuinty shifts focus to fixing G20 lawrdquo Toronto Star (10 December 2010) online thestarcom lthttpwwwthestarcomnewscanadaarticle905436--mcguinty-shifts-focus-to-fixing-g20-lawgt 83 Ibid
36
attempts to convey meaningrdquo84 While freedom of expression is not absolute there is
very little that is not considered expression However expression that advocates violence
is not protected under s 2(b)85
The Supreme Court of Canada in Committee for the Commonwealth of Canada v
Canada held that s 2(b) ldquodoes not encompass the right to use any and all government
property for purposes of disseminating onersquos views on public matters but I have no doubt
that it does include the right to use for that purpose streets and parks which are dedicated
to the use of the public subject no doubt to reasonable regulation to ensure their
continued use for the purposes to which they are dedicatedrdquo86 It seems clear that
protesting in public streets is a form of expression protected by s 2(b) Protesting at an
intergovernmental conference is clearly expressive in nature
In challenges alleging that a statute contravenes s 2(b) of the Charter a court would
examine whether the purpose or effect of a law contravenes section 2(b)87 There is no
reason to suggest that the purpose of the PWPA was to infringe the freedom of
expression The purpose of the PWPA is to protect important public infrastructures A
court would then have to consider whether the effect of the PWPA may have resulted in
an infringement of freedom of expression
O Reg 23310 defined significant portions of downtown Toronto as a ldquopublic workrdquo
Section 3(c) of the PWPA allows peace officers to refuse entry into public works which
therefore limits the areas in which protesters could express themselves By creating the
84 Irwin Toy Ltd v Queacutebec (Attorney General) [1989] 1 SCR 927 at 96885 Ibid at 97086 [1991] 1 SCR 139 at 165-16687 Peter Hogg Constitutional Law of Canada loose-leaf (consulted on 7 January 2011) 5th ed (Toronto Thomson Reuters Canada Limited 2007) at 43-6
37
relatively large security perimeter designated by the regulation individuals may allege
they were not permitted to communicate directly with those they were protesting against
Furthermore individuals could not communicate in public places such as public streets
where the right to freedom of expression has previously been found to exist88
Commissioner Ted Hughes completed an interim report following a public hearing into
the complaints regarding events that took place with respect to the Asia Pacific Economic
Cooperation (APEC) Conference in Vancouver British Columbia in November 1997
Commissioner Hughes recommended that generous opportunity should be afforded to
peaceful protesters to be seen in their protest activities by guests at the event89
Section 7 of the Charter provides that ldquoEveryone has the right to life liberty and security
of the person and the right not to be deprived thereof except in accordance with the
principles of fundamental justicerdquo The PWPA raises issues regarding the liberty and
security of the person in providing for warrantless searches and stopping for
identification Furthermore vague laws offend two fundamental values of our legal
system90 Firstly individuals are not provided with sufficient guidance as to what
behaviour a law prohibits Secondly those in charge of enforcing the law are not
provided with clear guidance as to how to enforce it A vague law can lead to inconsistent
and arbitrary enforcement91
88 Supra note 86 89 Canada Commission for Public Complaints Against the RCMP APEC ndash Commission Interim Report (31 July 2001) at s 3111 (Commissioner Ted Hughes QC) online Commission for Public Complaints Against the RCMP lthttpwwwcpc-cppgccaprrrepphrapecapec-31-engaspxgt90 Supra note 87 at 47-60 91 ldquoA vague provision does not provide an adequate basis for legal debate that is for reaching a conclusion as to its meaning by reasoned analysis applying legal criteria It does not sufficiently delineate any area of risk and thus can provide neither fair notice to the citizen nor a limitation of enforcement discretion Such
38
As described by Professor Hogg92
The requirement that any limit on rights be prescribed by law reflects two values that are basic to constitutionalism or the rule of law First in order to preclude arbitrary and discriminatory action by government officials all official action in derogation of rights must be authorized by law Secondly citizens must have reasonable opportunity to know what is prohibited so that they can act accordingly Both these values are satisfied by a law that fulfils two requirements (1) the law must be adequately accessible to the public and (2) the law must be formulated with sufficient precision to enable people to regulate their conduct by it and to provide guidance to those who apply the law
As I stated earlier the phrase ldquoany approach theretordquo contained in s 3(a) of the PWPA is
potentially vague No criteria are provided to assist in determining when one is on ldquoany
approach theretordquo A phrase such as ldquoany approach theretordquo is subject to many potential
interpretations It is arguable that this language does not provide reasonable guidance for
individuals to obey the law and for the law to be consistently enforced
Section 8 of the Charter provides that ldquoEveryone has the right to be secure against
unreasonable search or seizurerdquo A warrantless search or seizure is only reasonable if the
search was authorized by law the law itself is reasonable and the manner in which the
search carried out was reasonable93 The fact that no reasonable or probable suspicions
are needed to carry out a search pursuant to s 3(b) of the PWPA raises some issues The
only prerequisite to such a search is that the person or vehicle being subjected to a search
is entering or attempting to enter a public work
a provision is not intelligible to use the terminology of previous decisions of this Court and therefore it fails to give sufficient indications that could fuel a legal debaterdquo (R v Nova Scotia Pharmaceutical Society [1992] 2 SCR 606 at 639-640) 92 Supra note 87 at 38-1293 R v Nolet [2010] SCJ No 24 at para 21
39
Whether the PWPArsquos s 3(b) authority to undertake warrantless searches is ldquoreasonablerdquo
depends on the reasonableness of the impact on the subject of the search ldquoThe
individuals reasonable expectation of privacy must of course be balanced against the
public interest in effective law enforcementrdquo94 It is harder to justify a warrantless search
where the reasonable expectation of privacy is higher For example interference with
bodily integrity will raise the standard of reasonableness Conversely in situations where
people expect to have a lower level of privacy the standard to prove reasonableness is
lower
One rightfully has some expectation of privacy when in public but it does not rise to the
level of privacy that one expects in onersquos home The expectation of privacy further
decreases when one attempts to enter a ldquopublic workrdquo especially in the context of a
secured barrier to an intergovernmental conference
Section 9 of the Charter provides that ldquoEveryone has the right not to be arbitrarily
detained or imprisonedrdquo95 Under s 3(a) of the PWPA a person entering or attempting to
enter or approach a public work must provide his or her name and address and state the
purpose for which he or she desires to enter the public work In order for a guard or
peace officer to carry out this duty the guard or peace officer may ldquostoprdquo the person from
further approaching or entering the public work and the person is not permitted under the
statute to decide not to enter By so doing it is arguable the guard or peace officer has
assumed control over the movement of the individual by a demand or direction The
94 R v Rao [1984] OJ No 3180 at para 79 (CA)95 ldquoDetention under s 9hellipof the Charter refers to a suspension of the individualrsquos liberty interest by a significant physical or psychological restraint Psychological detention is established either where the individual has a legal obligation to comply with the restrictive request or demand or a reasonable person would conclude by reason of the state conduct that he or she had no choice but to complyrdquo (R v Grant [2009] SCJ No 32 at para 44)
40
PWPA provides for a significant legal consequence if the demand or direction is not
followed since ldquoEvery person who neglects or refuses to comply with a request or
direction made under this Act by a guard or peace officer and every person found upon a
public work or any approach thereto without lawful authority the proof whereof lies on
him or her is guilty of an offence and on conviction is liable to a fine of not more than
$500 or to imprisonment for a term of not more than two months or to bothrdquo96
Pursuant to s 3(b) of the PWPA a guard or peace officer may search any person entering
or attempting to enter a public work These searches would necessitate the detention of a
person If a guard or peace officer performs such a search he or she has taken control
over the movement of the person by a demand or direction The same serious legal
consequence results from failing to obey this demand or direction as that which results
from failing to obey the demand or direction pursuant to s 3(a) of the PWPA As a
result ldquodetentionsrdquo could occur pursuant to both s 3(a) and s 3(b) of the PWPA
The question that would need to be addressed in any challenge to the PWPA is whether
the detentions permitted by the PWPA are arbitrary in nature The use of the term ldquoany
approach theretordquo is vague and imprecise A person could be deemed to be on ldquoany
approach theretordquo a great distance from the entrance of a public work and their detention
might very well be arbitrary In addition the fact that the guards and peace officers
determine the boundaries of the ldquoapproachesrdquo which cannot be contested seems
arbitrary as well as who they chose to search
96 It should be noted that not all communications with state authorities and police officers will amount to a detention The question is whether a person may reasonably believe that he or she is free to refuse to comply
41
Section 11(d) of the Charter provides that ldquoAny person charged with an offence has the
right to be presumed innocent until proven guilty according to law in a fair and public
hearing by an independent and impartial tribunalrdquo This requires that the Crown have the
burden of proving the guilt of an individual charged with an offence97 Provisions that
place the burden on the accused to disprove on the balance of probabilities an essential
element of an offence raises s 11(d) concerns because convictions would be possible
even if reasonable doubt existed98 The presumption of innocence is not only infringed
upon by a requirement that an accused disprove an essential element of an offence but
also any requirement on an accused to prove a fact on the balance of probabilities to
avoid conviction
Section 5(1) of the PWPA states that ldquoEvery person who neglects or refuses to comply
with a request or direction made under this Act by a guard or peace officer and every
person found upon a public work or any approach thereto without lawful authority the
proof whereof lies on him or her is guilty of an offence and on conviction is liable to a
fine of not more than $500 or to imprisonment for a term of not more than two months or
to bothrdquo For the offence of being found upon a public work or on any approach to a
public work without lawful authority the burden of proof has been ldquoshiftedrdquo from the
Crown to the accused to prove lawful authority
As the foregoing analysis reveals there are certainly many concerns that arise when one
places the PWPA under the lens of the Charter However the rights and freedoms
provided by the Charter are not absolute They are ldquosubject only to such reasonable
97 R v Oakes [1986] 1 SCR 10398 Ibid at 132
42
limits prescribed by law as can be demonstrably justified in a free and democratic
societyrdquo99
In assessing whether a law which infringes the Charter is saved by s 1 a court examines
both the object of the law and the measures taken to achieve that objective A lawrsquos
objective achieves the status of being sufficiently important to justify overriding a
Charter right only when it is consistent with the values of a free and democratic society
The objective must relate to pressing and substantial concerns and not concerns that are
trivial and must be focussed on ldquothe realization of collective goals of fundamental
importancerdquo100 The measures adopted must be ldquorationally connectedrdquo to the objective of
the law101 The measures ldquoshould impair lsquoas little as possiblersquo the right or freedom in
questionrdquo102 Furthermore there must be ldquoa proportionality between the effects of the
measures which are responsible for limiting the Charter right or freedom and the
objective which has been identified as of lsquosufficient importancersquordquo103
An issue that may affect whether the potential limitation on rights and freedoms of the
PWPA and O Reg 23310 were ldquoprescribed by lawrdquo is whether the regulation was
adequately accessible to the public The Ontario Ombudsman the CCLA and the Ontario
Bar Association (ldquoOBArdquo) all noted a lack of notice regarding O Reg 23310 and its
effects prior to and during the G20 While the text of the regulation was available prior
99 Charter s 1 The Superior Court of Quebec decision of Tremblay v Queacutebec (Attorney General) [2001] JQ No 1504 (CS) involved an interim injunction brought by an applicant who was denied entry into the secured perimeter during the 2001 Summit of the Americas in Queacutebec City The applicant sought an injunction to either eliminate the security barrier or to be given a pass to let him within the secured perimeter Even though the Court held that the erection of the security zone violated the applicantrsquos right to freedom of expression and peaceful assembly The court held that the infringement was ldquodemonstrably justified in a free and democratic societyrdquo100 Supra note 97 at 136101 Ibid at 139102 Ibid103 Ibid
43
to the G20 it was only available on a website not frequently accessed by the public
Since O Reg 23310 was not published in The Ontario Gazette until after it was
revoked it may be that the regulation was not adequately accessible to the public
Reverse onus offences have been found to be ldquorationally connectedrdquo when there is plainly
a rational connection between the proven fact and the fact to be presumed Reverse
onuses have also been upheld when the burden placed on the Crown would be virtually
impossible to meet (such as proving sanity)104 Even if the accused only has the burden
of disproving the fact that heshe did not have lawful authority to be in a public work or
on an approach thereto there may not be a rational connection between the proven fact
and the fact to be presumed
The history of threats and violence at previous intergovernmental conferences
demonstrated that the protection of G20 participants was a pressing and substantial
concern However given the broadness of the PWPA every exercise of it raises the
potential for Charter scrutiny
Recommendation
Given the public policy considerations I have raised regarding the PWPA and Charter
concerns that could arise I recommend that the PWPA be repealed after the Province has
considered potential policy and security gaps as a result of its repeal
B Other uses of the Public Works Protection Act
It appears from my consultations with stakeholder groups that if the PWPA is repealed
104 R v Chaulk [1990] 3 SCR 1303 at 1340
44
there are two areas which may require legislation to provide specific peace officer
powers These two areas are court security and the protection of nuclear power facilities
and other power generating infrastructures
1 Court Security
During my decade as Ontariorsquos Attorney General (1975 to 1985) there were three
murders in provincial courthouses as well as many threats to members of courthouse staff
and others As violent acts in courthouses can be anticipated courtroom security is often
required
Individuals are compelled to go to court for a variety of reasons such as appearing as an
accused as a witness or for jury duty To provide protection to those who work there or
are compelled to attend an adequate level of court security may require a search without
warrant of each and every individual who seeks to enter a courthouse It is not reasonable
to require prior judicial authorization for each search that takes place
The courts have considered the constitutionality of these provisions of the PWPA in
conjunction with section 137 of the Ontario Police Services Act in the context of court
security
Section 137 of the Ontario Police Services Act imposes a responsibility on municipal
police services boards to secure the premises where court proceedings are conducted and
includes
1 Ensuring the security of judges and of persons taking part in or attending proceedings
45
2 During the hours when judges and members of the public are normally present ensuring the security of the premises
3 Ensuring the secure custody of persons in custody who are on or about the premises including persons taken into custody at proceedings
4 Determining appropriate levels of security for the purposes of paragraphs 1 2 and 3
In R v Campanella105 Ms Campanella was attending the John Sopinka Courthouse in
Hamilton At the courthouse there were signs posted stating that those who entered
would be searched for weapons When Ms Campanellarsquos bag was searched marijuana
was found and she was charged with the possession of marijuana She argued that her s
8 Charter protection against unreasonable search and seizure had been violated and the
marijuana discovered during the search should therefore be excluded as evidence The
trial judge and the summary convictions appeal court rejected the section 8 Charter
argument and the appellant appealed to the Ontario Court of Appeal
The Ontario Court of Appeal agreed that ldquogiven the importance of the government
objective and the context in which these searches take place it is reasonable to authorize
warrantless searches of those entering courthouse facilitiesrdquo106 The Court stated ldquothe
only effective way to diminish the risk in a large courthouse is to subject everyone
without prior security clearance to some kind of inspection I can see no other feasible
means of achieving the aimrdquo107
The Court also pointed out the concern relating to the erosion of the benefits and
105 [2002] OJ No 5104 (SCJ) affrsquod [2005] OJ No 1345 (CA) [ldquoCampanellardquo]106 R v Campanella [2005] OJ No 1345 at para 17 (CA)107 Ibid at para 19
46
protections conferred by s 8 of the Charter108
I am sensitive to the concern that we should not erode the benefits and protections of s 8 by gradually sanctioning ever-greater intrusions into privacy because of unfounded fears We should not lightly accept that searches in public places are justified solely because people have become used to them and expect them However the record in this case establishes the justification for the kinds of searches carried out in this case
Ultimately the appeal was dismissed and s 137 of the Police Services Act and s 3(b) of
the PWPA) were held to comply with s 8 of the Charter109
In its consultations with me the OBA similarly stated that the existing nature of court
security is necessary and is generally ldquowell toleratedrdquo At the same time however it
submits that the security regime should not be ldquoshoehornedrdquo into the PWPA regime and
that it would be preferable to provide a legislative framework tailored for the specific
security requirements While the PWPA has been relied upon as support for the exercise
of powers by the police in providing court security the OBA submits that the PWPArsquos
ldquosingle security schemerdquo which declares something a ldquopublic workrdquo is an ldquoawkward
blunt instrument in a world where more specialized tools are necessaryrdquo When
warrantless searches are being done on a routine basis it is advisable to have specific
legislation providing peace officers with such power
Recommendation
Court security legislation is currently in place in many jurisdictions across Canada and
contain provisions that permit warrantless searches of persons wanting to access a
108 Ibid at para 25109 The Court in R v SS [2005] OJ No 5002 (SCJ) agreed with the findings and rationale of the Court of Appeal in Campanella
47
courthouse The constitutional validity of such legislation in Manitoba was upheld by that
provincersquos highest court110
Given the ongoing need for warrantless searches at courthouses the Province of Ontario
should consider specific court security legislation in Ontario to support the security
measures in our courthouses if the PWPA is to be repealed taking into consideration the
responsibilities of the municipal police services boards provided in s 137 of the Police
Services Act This legislation should only be passed after proper notice consultation and
legislative debate
2 Power Generating Infrastructures
It is clear from the submissions that I received from representatives of OPG and the
Canadian Nuclear Safety Commission (ldquoCNSCrdquo) that the PWPA currently plays a role in
providing security officers with the powers to secure power generating infrastructures
including the ability to carry firearms and the ability to stop and require identification
from those in proximity to those nuclear plants
Security is of the utmost importance in protecting a nuclear power plant Members of the
public do not need to access a nuclear or similar power facility unless employed at the
facility or carrying out work for the facility111
The security of areas within nuclear power plants is governed by the Nuclear Security
110 R v Lindsay [2004] MJ No 380 (CA) 111 Though the discussion focuses on nuclear power plants I have been informed that other power generating infrastructures use the PWPA to designate their security officers as guards As a result if the PWPA is repealed it will be necessary to broaden the consultations in relation to these other power generating infrastructures
48
Regulations112 Every nuclear power plant must be located within a ldquoprotected areardquo113
This protected area is the area within a fenced perimeter which is alarmed and
continually patrolled This area must be equipped with devices that employ two
independent systems to detect intrusion into the area114 The Nuclear Security
Regulations also provide detailed specifications for the barrier which must enclose the
protected area115 In addition licensees must ldquoidentify all vital areas and implement
physical protection measures ndash including access control and measures designed to delay
unauthorized accessrdquo116
The Nuclear Security Regulations also provide detailed provisions regarding entry into
protected areas No person can ldquoenter a protected area without physical proof of the
recorded authorization of the licenseerdquo117 Further to this on entry into a protected area
ldquothat personrsquos identity shall be verified by two separate personnel identity verification
systems one of which is an access card reader and the other of which is a biometric
personnel identity verification devicerdquo118 Licensees must also ldquoensure that vehicle
portals are used for the entry and exit of land vehicles into and from a protected areardquo119
Physical protection measures are also required to reduce the chance of a forced land
vehicle entry into a protected area120
The power to conduct searches upon entry to a protected area is also provided by the
112 SOR2000-209 113 Ibid s 8114 Ibid s 11(a)(i)115 Ibid s 9116 Ibid s 141117 Ibid s 17(1)118 Ibid s 171119 Ibid s 91(1)120 Ibid s 91(4)
49
Nuclear Security Regulations Signs must be posted that are visible to people about to
enter the protected area stating that they must allow a nuclear security officer (ldquoNSOrdquo) to
ldquosearch them and everything in their possession including any land vehicle for weapons
and explosive substancesrdquo121 In addition when leaving the protected area people must
allow NSOs to ldquosearch them and everything in their possession including any land
vehicle for Category I II or III nuclear materialrdquo122 People are not permitted to enter or
leave a protected area unless these searches are carried out123 The Nuclear Security
Regulations provide for the method of search including ldquoa hand-held scanner a walk-
through scanner or any similar devicerdquo124 In addition if an NSO determines it
necessary a frisk search can be carried out by a person of the same sex125
I have been informed that the area outside of but adjacent to the ldquoprotected areardquo is
referred to as the ldquocontrolled areardquo This area includes roadways and waterways within
the nuclear facilityrsquos property boundaries adjacent to or in close proximity to the nuclear
power plantrsquos protected area and may be generally accessible to the public
As a result of the September 11 2001 terrorist attacks the Nuclear Security Regulations
were amended to require that high security nuclear facilities maintain an on-site armed
Nuclear Response Force (ldquoNRFrdquo)126 The NRF is composed of specialized NSOs
Section 32 of the Nuclear Security Regulations requires the NRF to be capable of making
an effective intervention taking into account the threat
121 Ibid s 27(1)(a)122 Ibid s 27(1)(b)123 Ibid s 27(2)124 Ibid s 27(5)(a)125 Ibid s 27(5)(b)126 Ibid s 32
50
Members of the NRF are mandated by the Nuclear Security Regulations to be ldquotrained in
the use of firearms authorized to carry firearms in Canada and qualified to use themrdquo127
However to satisfy this requirement the NRF resorts to the PWPA since the federal
regulations do not authorize the NRF to carry firearms without a licence However
under s 2(1) of the PWPA NSOs are designated as ldquoguardsrdquo with the powers of a peace
officer most significantly to carry and use firearms without having to be licensed128
Such a designation also enables the OPG to acquire and dispose of firearms
In the consultations I had with the OPG and the CNSC they advised me that NSOs
receive training equivalent to Canadian police standards and that NRF officers receive
training equivalent to federal and provincial police tactical team requirements
Another aspect of the PWPA used to secure nuclear power plants relates to powers
exercised by NSOs in ldquocontrolled areasrdquo The federal regulations do not provide the
NSOs with any power to demand identification within this area However pursuant to
the PWPA as appointed ldquoguardsrdquo the NSOs have the power to demand identity
verification in the controlled area They also have the authority to arrest anyone who
obstructs NSOs in the performance of their duties under the PWPA
In addition to using the PWPA to secure the controlled areas I have been advised by the
OPG that NSOs use powers pursuant to the PWPA to secure areas within 100 metres of a
nuclear facilityrsquos property line immediately adjacent to the controlled area These powers
are exercised under the broad language of the PWPA regarding ldquoapproaches to public
127 Ibid s 1 (on-site nuclear response force definition)128 Section 11707 of the Criminal Code exempts peace officers from licensing requirements for possessing firearms and other prohibited and restricted weapons
51
worksrdquo This is an illustration of the problem with the vagueness of this language in the
legislation As these powers are exercised on public land they could be challenged as a
potential infringement on individual rights and freedoms However I have been advised
that there have been no such incidents to date The need to ensure the security of these
facilities must be taken into the balance
NSOs must be able to monitor and control access to the controlled areas and areas close
to a nuclear power plantrsquos property line This provides for a more secure perimeter
around these facilities They need authority to challenge individuals acting in a suspicious
manner or conducting surveillance of nuclear facilities The OPG has informed me that
areas outside a nuclear facilityrsquos property line immediately adjacent to the controlled
area are still close enough to take advantage of the short distance to conduct intelligence
using high-powered surveillance equipment These nuclear power plants are not located
on isolated islands and are therefore vulnerable Both the Pickering Nuclear Generating
Station and the Darlington Nuclear Generating Station operate within major urban areas
being 30 km and 60 km east of downtown Toronto respectively I am advised that
previous events such as ldquoThe Toronto 18rdquo129 have shown that those intent on targeting
vital infrastructure such as power generating facilities often use reconnaissance and
intelligence gathering as precursor tactics
Recommendation
If the PWPA is to be repealed it is imperative that those who secure our nuclear and
power generating facilities be given the requisite specific legislative powers to do so
129 See for example ldquoLast 2 Toronto 18 accused found guiltyrdquo CBC News (23 June 2010) online cbcca lthttpwwwcbccanewscanadatorontostory20100623toronto-18-verdicthtmlgt
52
The source for these powers should be set out in the federal Nuclear Security
Regulations However if this is not a desired option the Government of Ontario must
consider specific legislation setting out the specific powers required to properly secure
these facilities and the specific location in which these powers can be exercised Such
legislation should not be passed without proper notice consultation and legislative
debate
53
SECTION 6 CONCLUSION
The PWPA was enacted in 1939 to support the war effort At the time the protection of
Ontariorsquos hydroelectric facilities from sabotage was of particular concern Since then the
PWPA has been used to provide the legal foundation for the powers exercised by the
police in providing court security and even more recently by the OPG in securing
nuclear power facilities In June 2010 the PWPA was used to provide powers to secure
intergovernmental conferences The vagueness of the PWPA permits it to be used in
situations when it is arguably not necessary and potentially abusive In my view the
PWPA has been used for purposes beyond its original intent
The time for the PWPA seems to have passed If the Government of Ontario enacts as I
have suggested specific legislation to provide for courthouse security and power
generating infrastructure security it would appear that there is no longer a need for the
PWPA I am also mindful of the existence of counter-terrorism and emergencies
legislation to deal with these situations as they arise
ldquoIn determining the boundaries of police powers caution is required to ensure the proper
balance between preventing excessive intrusions on an individualrsquos liberty and privacy
and enabling the police to do what is reasonably necessary to perform their duties in
protecting the publicrdquo130 The overly broad and vague language of the PWPA does not
strike this required balance with individual rights and freedoms
The late Justice Jackson of the United States Supreme Court stated that every
emergency power once conferred ldquolies about like a loaded weapon ready for the hand of
130 R v Clayton [2007] 2 SCR 725 at 742
54
any authority that can bring forward a plausible claim of an urgent needrdquo131 The need to
protect the public must be balanced with the requirement to preserve fundamental rights
and freedoms
Yet at the same time ldquoCanadians are entitled to demand the best public order policing
possible from their governmentrdquo132 There is no question that we live in a different world
post 911 We live in difficult times with constant threats both domestically and from
abroad The police clearly need to be given adequate powers to carry out their duties
The police use their expertise on a daily basis to assess the powers they require In
instances when they take action that exceeds their powers their actions are examined by
various mandated bodies This process I believe results in the proper balance between
police powers and individual rights and freedoms Therefore any legislation that purports
to grant special police powers must be specific and direct and developed in consultation
with stakeholders and tested through thorough debate in our transparent democratic
system
131 Korematsu v United States 323 US 214 (1944)132 Supra note 26 p 8
55
responsibilities with deep historical roots in the common law and codified in statute a
position shared by the Federal Government when it introduced amendments to the
FMIOA The actions of the police in Knowlton were necessarily incidental to their
common law police duties and powers
The authors conclude that this ldquoauthority of police to create zones of exclusion either as
an incident of the general and ancient duties of constableshelliphas never been established in
the courtsrdquo70 I am of the view however that the role of the police in establishing
security zones relating to a crime a serious accident or other emergency is a routine and
well-accepted use of police powers pursuant to their common law and statutory duties I
am not suggesting that this common law authority permits the police to establish security
zones ldquofor the proper functioning of any intergovernmental conference in which two or
more states participaterdquo71 larger than necessary to fulfill their purpose The FMIOA as
amended in 2002 provides the RCMP with ldquoprimary responsibility to ensure the security
for the proper functioning of the intergovernmental conferencerdquo72 It is interesting
however that when the Federal Government was enacting this specific authority the
legislative debates indicated that the government was merely clarifying ldquoin statute the
present common law authority for police to provide security and protection for high
profile international eventsrdquo73
Security perimeters are routinely erected by police in the context of the commission of a
crime motor vehicle and other accidents as well as the Santa Claus parade and other
70 Ibid p 9671 Supra note 8 s 101(1)72 Ibid73 Supra note 58
33
parades It would in my view be quite impractical and unnecessary to legislate an
extensive code of police powers given their common law and statutory responsibilities to
generally maintain public order It is not advisable in my opinion to be prescriptive in
any way regarding what actions the police can take since they must assess what the
situation warrants while at the same time considering individual rights and freedoms
The details of any police response to an emergency must be tailored to the exigencies
related to the situation
The police clearly have common law and statutory authority to conduct warrantless
searches in specific situations (ldquoin exigent circumstancesrdquo)74 However when
warrantless searches must be carried out on a regular routine basis the police are acting
more like full time security guards and there should be specific statutory authority
provided to give such powers
I certainly accept the general proposition the authors assert that the mobility rights of
citizens should not be unreasonably or unfairly dealt with However one only need be
aware of the massive amount of construction taking place on the streets of Toronto as this
Report is being written to appreciate that it is not always reasonable to expect that ldquothe
rights of businesses homeowners and ordinary citizens to go about their routine
activities without interruptionrdquo75 will go unhindered While generally desirable it cannot
be legally guaranteed At the same time the authors do concede that ldquoimportant as they
74 Supra note 42 s 4871175 Supra note 65 p 89
34
are the rights of assembly movement and protest are not unqualified They can ndash and
should ndash be balanced against other important public needsrdquo76
In my view public policing at times requires innovation as it often benefits from
creative problem solving If police abuse their common law powers related to ldquopublic
order policingrdquo they are accountable to a multiplicity of authorities and the rule of law
most particularly the Charter The legal rights outlined in the Charter such as ldquothe
principles of fundamental justicerdquo77 security ldquoagainst unreasonable search and seizurerdquo78
and ldquothe right not to be arbitrarily detained or imprisonedrdquo79 are described very
generally However they were chosen deliberately as it was recognized that in each case
there is an inherent tension between imposing security measures and fundamental rights
and freedoms Determining which is paramount will be based on the facts of each case
76 Ibid p 9177 Canadian Charter of Rights and Freedoms s 7 Part I of the Constitution Act 1982 being Schedule B to the Canada Act 1982 (UK) 1982 c 1178 Ibid s 879 Ibid s 9
35
SECTION 5 LEGAL ANALYSIS OF THE PUBLIC WORKS PROTECTION ACT
A Legal Analysis of the Legislation
Many stakeholders have questioned the constitutional validity of the PWPA and O Reg
23310 The Ontario Ombudsman seriously questioned whether O Reg 23310 could
pass ldquoconstitutional musterrdquo80 The CCLA suggested that the broad police powers
granted under the PWPA were inconsistent with the Charter81
To the same effect were comments made by Premier Dalton McGuinty who described
the PWPA as ldquoan archaic law that was used to undermine Torontoniansrsquo civil rights
during the G20rdquo82 He elaborated83
The issue is whether itrsquos appropriate given our present-day values and given an old law which I am confident doesnrsquot strike the balance that you and I would want today in terms of public safety and individual freedom of expressionhellipWhen you start talking about civil rights individual freedoms yoursquore talking about those things that in fact define us as a free and democratic societyhellipItrsquos something that is real and meaningful and important to all of us
The Terms of Reference for this Review do not require that I conduct a constitutional
analysis of the PWPA I have however been asked to consider areas for reform and if
appropriate make specific recommendations for amendment or repeal This does require
that I therefore consider whether the legislation may be vulnerable to constitutional
challenge
Section 2(b) of the Charter guarantees everyone the fundamental freedom of expression
The definition of ldquoexpressionrdquo has been interpreted broadly ldquoActivity is expressive if it
80 Supra note 32 at para 23381 Supra note 26 p 982 Robert Benzie and Rob Ferguson ldquoMcGuinty shifts focus to fixing G20 lawrdquo Toronto Star (10 December 2010) online thestarcom lthttpwwwthestarcomnewscanadaarticle905436--mcguinty-shifts-focus-to-fixing-g20-lawgt 83 Ibid
36
attempts to convey meaningrdquo84 While freedom of expression is not absolute there is
very little that is not considered expression However expression that advocates violence
is not protected under s 2(b)85
The Supreme Court of Canada in Committee for the Commonwealth of Canada v
Canada held that s 2(b) ldquodoes not encompass the right to use any and all government
property for purposes of disseminating onersquos views on public matters but I have no doubt
that it does include the right to use for that purpose streets and parks which are dedicated
to the use of the public subject no doubt to reasonable regulation to ensure their
continued use for the purposes to which they are dedicatedrdquo86 It seems clear that
protesting in public streets is a form of expression protected by s 2(b) Protesting at an
intergovernmental conference is clearly expressive in nature
In challenges alleging that a statute contravenes s 2(b) of the Charter a court would
examine whether the purpose or effect of a law contravenes section 2(b)87 There is no
reason to suggest that the purpose of the PWPA was to infringe the freedom of
expression The purpose of the PWPA is to protect important public infrastructures A
court would then have to consider whether the effect of the PWPA may have resulted in
an infringement of freedom of expression
O Reg 23310 defined significant portions of downtown Toronto as a ldquopublic workrdquo
Section 3(c) of the PWPA allows peace officers to refuse entry into public works which
therefore limits the areas in which protesters could express themselves By creating the
84 Irwin Toy Ltd v Queacutebec (Attorney General) [1989] 1 SCR 927 at 96885 Ibid at 97086 [1991] 1 SCR 139 at 165-16687 Peter Hogg Constitutional Law of Canada loose-leaf (consulted on 7 January 2011) 5th ed (Toronto Thomson Reuters Canada Limited 2007) at 43-6
37
relatively large security perimeter designated by the regulation individuals may allege
they were not permitted to communicate directly with those they were protesting against
Furthermore individuals could not communicate in public places such as public streets
where the right to freedom of expression has previously been found to exist88
Commissioner Ted Hughes completed an interim report following a public hearing into
the complaints regarding events that took place with respect to the Asia Pacific Economic
Cooperation (APEC) Conference in Vancouver British Columbia in November 1997
Commissioner Hughes recommended that generous opportunity should be afforded to
peaceful protesters to be seen in their protest activities by guests at the event89
Section 7 of the Charter provides that ldquoEveryone has the right to life liberty and security
of the person and the right not to be deprived thereof except in accordance with the
principles of fundamental justicerdquo The PWPA raises issues regarding the liberty and
security of the person in providing for warrantless searches and stopping for
identification Furthermore vague laws offend two fundamental values of our legal
system90 Firstly individuals are not provided with sufficient guidance as to what
behaviour a law prohibits Secondly those in charge of enforcing the law are not
provided with clear guidance as to how to enforce it A vague law can lead to inconsistent
and arbitrary enforcement91
88 Supra note 86 89 Canada Commission for Public Complaints Against the RCMP APEC ndash Commission Interim Report (31 July 2001) at s 3111 (Commissioner Ted Hughes QC) online Commission for Public Complaints Against the RCMP lthttpwwwcpc-cppgccaprrrepphrapecapec-31-engaspxgt90 Supra note 87 at 47-60 91 ldquoA vague provision does not provide an adequate basis for legal debate that is for reaching a conclusion as to its meaning by reasoned analysis applying legal criteria It does not sufficiently delineate any area of risk and thus can provide neither fair notice to the citizen nor a limitation of enforcement discretion Such
38
As described by Professor Hogg92
The requirement that any limit on rights be prescribed by law reflects two values that are basic to constitutionalism or the rule of law First in order to preclude arbitrary and discriminatory action by government officials all official action in derogation of rights must be authorized by law Secondly citizens must have reasonable opportunity to know what is prohibited so that they can act accordingly Both these values are satisfied by a law that fulfils two requirements (1) the law must be adequately accessible to the public and (2) the law must be formulated with sufficient precision to enable people to regulate their conduct by it and to provide guidance to those who apply the law
As I stated earlier the phrase ldquoany approach theretordquo contained in s 3(a) of the PWPA is
potentially vague No criteria are provided to assist in determining when one is on ldquoany
approach theretordquo A phrase such as ldquoany approach theretordquo is subject to many potential
interpretations It is arguable that this language does not provide reasonable guidance for
individuals to obey the law and for the law to be consistently enforced
Section 8 of the Charter provides that ldquoEveryone has the right to be secure against
unreasonable search or seizurerdquo A warrantless search or seizure is only reasonable if the
search was authorized by law the law itself is reasonable and the manner in which the
search carried out was reasonable93 The fact that no reasonable or probable suspicions
are needed to carry out a search pursuant to s 3(b) of the PWPA raises some issues The
only prerequisite to such a search is that the person or vehicle being subjected to a search
is entering or attempting to enter a public work
a provision is not intelligible to use the terminology of previous decisions of this Court and therefore it fails to give sufficient indications that could fuel a legal debaterdquo (R v Nova Scotia Pharmaceutical Society [1992] 2 SCR 606 at 639-640) 92 Supra note 87 at 38-1293 R v Nolet [2010] SCJ No 24 at para 21
39
Whether the PWPArsquos s 3(b) authority to undertake warrantless searches is ldquoreasonablerdquo
depends on the reasonableness of the impact on the subject of the search ldquoThe
individuals reasonable expectation of privacy must of course be balanced against the
public interest in effective law enforcementrdquo94 It is harder to justify a warrantless search
where the reasonable expectation of privacy is higher For example interference with
bodily integrity will raise the standard of reasonableness Conversely in situations where
people expect to have a lower level of privacy the standard to prove reasonableness is
lower
One rightfully has some expectation of privacy when in public but it does not rise to the
level of privacy that one expects in onersquos home The expectation of privacy further
decreases when one attempts to enter a ldquopublic workrdquo especially in the context of a
secured barrier to an intergovernmental conference
Section 9 of the Charter provides that ldquoEveryone has the right not to be arbitrarily
detained or imprisonedrdquo95 Under s 3(a) of the PWPA a person entering or attempting to
enter or approach a public work must provide his or her name and address and state the
purpose for which he or she desires to enter the public work In order for a guard or
peace officer to carry out this duty the guard or peace officer may ldquostoprdquo the person from
further approaching or entering the public work and the person is not permitted under the
statute to decide not to enter By so doing it is arguable the guard or peace officer has
assumed control over the movement of the individual by a demand or direction The
94 R v Rao [1984] OJ No 3180 at para 79 (CA)95 ldquoDetention under s 9hellipof the Charter refers to a suspension of the individualrsquos liberty interest by a significant physical or psychological restraint Psychological detention is established either where the individual has a legal obligation to comply with the restrictive request or demand or a reasonable person would conclude by reason of the state conduct that he or she had no choice but to complyrdquo (R v Grant [2009] SCJ No 32 at para 44)
40
PWPA provides for a significant legal consequence if the demand or direction is not
followed since ldquoEvery person who neglects or refuses to comply with a request or
direction made under this Act by a guard or peace officer and every person found upon a
public work or any approach thereto without lawful authority the proof whereof lies on
him or her is guilty of an offence and on conviction is liable to a fine of not more than
$500 or to imprisonment for a term of not more than two months or to bothrdquo96
Pursuant to s 3(b) of the PWPA a guard or peace officer may search any person entering
or attempting to enter a public work These searches would necessitate the detention of a
person If a guard or peace officer performs such a search he or she has taken control
over the movement of the person by a demand or direction The same serious legal
consequence results from failing to obey this demand or direction as that which results
from failing to obey the demand or direction pursuant to s 3(a) of the PWPA As a
result ldquodetentionsrdquo could occur pursuant to both s 3(a) and s 3(b) of the PWPA
The question that would need to be addressed in any challenge to the PWPA is whether
the detentions permitted by the PWPA are arbitrary in nature The use of the term ldquoany
approach theretordquo is vague and imprecise A person could be deemed to be on ldquoany
approach theretordquo a great distance from the entrance of a public work and their detention
might very well be arbitrary In addition the fact that the guards and peace officers
determine the boundaries of the ldquoapproachesrdquo which cannot be contested seems
arbitrary as well as who they chose to search
96 It should be noted that not all communications with state authorities and police officers will amount to a detention The question is whether a person may reasonably believe that he or she is free to refuse to comply
41
Section 11(d) of the Charter provides that ldquoAny person charged with an offence has the
right to be presumed innocent until proven guilty according to law in a fair and public
hearing by an independent and impartial tribunalrdquo This requires that the Crown have the
burden of proving the guilt of an individual charged with an offence97 Provisions that
place the burden on the accused to disprove on the balance of probabilities an essential
element of an offence raises s 11(d) concerns because convictions would be possible
even if reasonable doubt existed98 The presumption of innocence is not only infringed
upon by a requirement that an accused disprove an essential element of an offence but
also any requirement on an accused to prove a fact on the balance of probabilities to
avoid conviction
Section 5(1) of the PWPA states that ldquoEvery person who neglects or refuses to comply
with a request or direction made under this Act by a guard or peace officer and every
person found upon a public work or any approach thereto without lawful authority the
proof whereof lies on him or her is guilty of an offence and on conviction is liable to a
fine of not more than $500 or to imprisonment for a term of not more than two months or
to bothrdquo For the offence of being found upon a public work or on any approach to a
public work without lawful authority the burden of proof has been ldquoshiftedrdquo from the
Crown to the accused to prove lawful authority
As the foregoing analysis reveals there are certainly many concerns that arise when one
places the PWPA under the lens of the Charter However the rights and freedoms
provided by the Charter are not absolute They are ldquosubject only to such reasonable
97 R v Oakes [1986] 1 SCR 10398 Ibid at 132
42
limits prescribed by law as can be demonstrably justified in a free and democratic
societyrdquo99
In assessing whether a law which infringes the Charter is saved by s 1 a court examines
both the object of the law and the measures taken to achieve that objective A lawrsquos
objective achieves the status of being sufficiently important to justify overriding a
Charter right only when it is consistent with the values of a free and democratic society
The objective must relate to pressing and substantial concerns and not concerns that are
trivial and must be focussed on ldquothe realization of collective goals of fundamental
importancerdquo100 The measures adopted must be ldquorationally connectedrdquo to the objective of
the law101 The measures ldquoshould impair lsquoas little as possiblersquo the right or freedom in
questionrdquo102 Furthermore there must be ldquoa proportionality between the effects of the
measures which are responsible for limiting the Charter right or freedom and the
objective which has been identified as of lsquosufficient importancersquordquo103
An issue that may affect whether the potential limitation on rights and freedoms of the
PWPA and O Reg 23310 were ldquoprescribed by lawrdquo is whether the regulation was
adequately accessible to the public The Ontario Ombudsman the CCLA and the Ontario
Bar Association (ldquoOBArdquo) all noted a lack of notice regarding O Reg 23310 and its
effects prior to and during the G20 While the text of the regulation was available prior
99 Charter s 1 The Superior Court of Quebec decision of Tremblay v Queacutebec (Attorney General) [2001] JQ No 1504 (CS) involved an interim injunction brought by an applicant who was denied entry into the secured perimeter during the 2001 Summit of the Americas in Queacutebec City The applicant sought an injunction to either eliminate the security barrier or to be given a pass to let him within the secured perimeter Even though the Court held that the erection of the security zone violated the applicantrsquos right to freedom of expression and peaceful assembly The court held that the infringement was ldquodemonstrably justified in a free and democratic societyrdquo100 Supra note 97 at 136101 Ibid at 139102 Ibid103 Ibid
43
to the G20 it was only available on a website not frequently accessed by the public
Since O Reg 23310 was not published in The Ontario Gazette until after it was
revoked it may be that the regulation was not adequately accessible to the public
Reverse onus offences have been found to be ldquorationally connectedrdquo when there is plainly
a rational connection between the proven fact and the fact to be presumed Reverse
onuses have also been upheld when the burden placed on the Crown would be virtually
impossible to meet (such as proving sanity)104 Even if the accused only has the burden
of disproving the fact that heshe did not have lawful authority to be in a public work or
on an approach thereto there may not be a rational connection between the proven fact
and the fact to be presumed
The history of threats and violence at previous intergovernmental conferences
demonstrated that the protection of G20 participants was a pressing and substantial
concern However given the broadness of the PWPA every exercise of it raises the
potential for Charter scrutiny
Recommendation
Given the public policy considerations I have raised regarding the PWPA and Charter
concerns that could arise I recommend that the PWPA be repealed after the Province has
considered potential policy and security gaps as a result of its repeal
B Other uses of the Public Works Protection Act
It appears from my consultations with stakeholder groups that if the PWPA is repealed
104 R v Chaulk [1990] 3 SCR 1303 at 1340
44
there are two areas which may require legislation to provide specific peace officer
powers These two areas are court security and the protection of nuclear power facilities
and other power generating infrastructures
1 Court Security
During my decade as Ontariorsquos Attorney General (1975 to 1985) there were three
murders in provincial courthouses as well as many threats to members of courthouse staff
and others As violent acts in courthouses can be anticipated courtroom security is often
required
Individuals are compelled to go to court for a variety of reasons such as appearing as an
accused as a witness or for jury duty To provide protection to those who work there or
are compelled to attend an adequate level of court security may require a search without
warrant of each and every individual who seeks to enter a courthouse It is not reasonable
to require prior judicial authorization for each search that takes place
The courts have considered the constitutionality of these provisions of the PWPA in
conjunction with section 137 of the Ontario Police Services Act in the context of court
security
Section 137 of the Ontario Police Services Act imposes a responsibility on municipal
police services boards to secure the premises where court proceedings are conducted and
includes
1 Ensuring the security of judges and of persons taking part in or attending proceedings
45
2 During the hours when judges and members of the public are normally present ensuring the security of the premises
3 Ensuring the secure custody of persons in custody who are on or about the premises including persons taken into custody at proceedings
4 Determining appropriate levels of security for the purposes of paragraphs 1 2 and 3
In R v Campanella105 Ms Campanella was attending the John Sopinka Courthouse in
Hamilton At the courthouse there were signs posted stating that those who entered
would be searched for weapons When Ms Campanellarsquos bag was searched marijuana
was found and she was charged with the possession of marijuana She argued that her s
8 Charter protection against unreasonable search and seizure had been violated and the
marijuana discovered during the search should therefore be excluded as evidence The
trial judge and the summary convictions appeal court rejected the section 8 Charter
argument and the appellant appealed to the Ontario Court of Appeal
The Ontario Court of Appeal agreed that ldquogiven the importance of the government
objective and the context in which these searches take place it is reasonable to authorize
warrantless searches of those entering courthouse facilitiesrdquo106 The Court stated ldquothe
only effective way to diminish the risk in a large courthouse is to subject everyone
without prior security clearance to some kind of inspection I can see no other feasible
means of achieving the aimrdquo107
The Court also pointed out the concern relating to the erosion of the benefits and
105 [2002] OJ No 5104 (SCJ) affrsquod [2005] OJ No 1345 (CA) [ldquoCampanellardquo]106 R v Campanella [2005] OJ No 1345 at para 17 (CA)107 Ibid at para 19
46
protections conferred by s 8 of the Charter108
I am sensitive to the concern that we should not erode the benefits and protections of s 8 by gradually sanctioning ever-greater intrusions into privacy because of unfounded fears We should not lightly accept that searches in public places are justified solely because people have become used to them and expect them However the record in this case establishes the justification for the kinds of searches carried out in this case
Ultimately the appeal was dismissed and s 137 of the Police Services Act and s 3(b) of
the PWPA) were held to comply with s 8 of the Charter109
In its consultations with me the OBA similarly stated that the existing nature of court
security is necessary and is generally ldquowell toleratedrdquo At the same time however it
submits that the security regime should not be ldquoshoehornedrdquo into the PWPA regime and
that it would be preferable to provide a legislative framework tailored for the specific
security requirements While the PWPA has been relied upon as support for the exercise
of powers by the police in providing court security the OBA submits that the PWPArsquos
ldquosingle security schemerdquo which declares something a ldquopublic workrdquo is an ldquoawkward
blunt instrument in a world where more specialized tools are necessaryrdquo When
warrantless searches are being done on a routine basis it is advisable to have specific
legislation providing peace officers with such power
Recommendation
Court security legislation is currently in place in many jurisdictions across Canada and
contain provisions that permit warrantless searches of persons wanting to access a
108 Ibid at para 25109 The Court in R v SS [2005] OJ No 5002 (SCJ) agreed with the findings and rationale of the Court of Appeal in Campanella
47
courthouse The constitutional validity of such legislation in Manitoba was upheld by that
provincersquos highest court110
Given the ongoing need for warrantless searches at courthouses the Province of Ontario
should consider specific court security legislation in Ontario to support the security
measures in our courthouses if the PWPA is to be repealed taking into consideration the
responsibilities of the municipal police services boards provided in s 137 of the Police
Services Act This legislation should only be passed after proper notice consultation and
legislative debate
2 Power Generating Infrastructures
It is clear from the submissions that I received from representatives of OPG and the
Canadian Nuclear Safety Commission (ldquoCNSCrdquo) that the PWPA currently plays a role in
providing security officers with the powers to secure power generating infrastructures
including the ability to carry firearms and the ability to stop and require identification
from those in proximity to those nuclear plants
Security is of the utmost importance in protecting a nuclear power plant Members of the
public do not need to access a nuclear or similar power facility unless employed at the
facility or carrying out work for the facility111
The security of areas within nuclear power plants is governed by the Nuclear Security
110 R v Lindsay [2004] MJ No 380 (CA) 111 Though the discussion focuses on nuclear power plants I have been informed that other power generating infrastructures use the PWPA to designate their security officers as guards As a result if the PWPA is repealed it will be necessary to broaden the consultations in relation to these other power generating infrastructures
48
Regulations112 Every nuclear power plant must be located within a ldquoprotected areardquo113
This protected area is the area within a fenced perimeter which is alarmed and
continually patrolled This area must be equipped with devices that employ two
independent systems to detect intrusion into the area114 The Nuclear Security
Regulations also provide detailed specifications for the barrier which must enclose the
protected area115 In addition licensees must ldquoidentify all vital areas and implement
physical protection measures ndash including access control and measures designed to delay
unauthorized accessrdquo116
The Nuclear Security Regulations also provide detailed provisions regarding entry into
protected areas No person can ldquoenter a protected area without physical proof of the
recorded authorization of the licenseerdquo117 Further to this on entry into a protected area
ldquothat personrsquos identity shall be verified by two separate personnel identity verification
systems one of which is an access card reader and the other of which is a biometric
personnel identity verification devicerdquo118 Licensees must also ldquoensure that vehicle
portals are used for the entry and exit of land vehicles into and from a protected areardquo119
Physical protection measures are also required to reduce the chance of a forced land
vehicle entry into a protected area120
The power to conduct searches upon entry to a protected area is also provided by the
112 SOR2000-209 113 Ibid s 8114 Ibid s 11(a)(i)115 Ibid s 9116 Ibid s 141117 Ibid s 17(1)118 Ibid s 171119 Ibid s 91(1)120 Ibid s 91(4)
49
Nuclear Security Regulations Signs must be posted that are visible to people about to
enter the protected area stating that they must allow a nuclear security officer (ldquoNSOrdquo) to
ldquosearch them and everything in their possession including any land vehicle for weapons
and explosive substancesrdquo121 In addition when leaving the protected area people must
allow NSOs to ldquosearch them and everything in their possession including any land
vehicle for Category I II or III nuclear materialrdquo122 People are not permitted to enter or
leave a protected area unless these searches are carried out123 The Nuclear Security
Regulations provide for the method of search including ldquoa hand-held scanner a walk-
through scanner or any similar devicerdquo124 In addition if an NSO determines it
necessary a frisk search can be carried out by a person of the same sex125
I have been informed that the area outside of but adjacent to the ldquoprotected areardquo is
referred to as the ldquocontrolled areardquo This area includes roadways and waterways within
the nuclear facilityrsquos property boundaries adjacent to or in close proximity to the nuclear
power plantrsquos protected area and may be generally accessible to the public
As a result of the September 11 2001 terrorist attacks the Nuclear Security Regulations
were amended to require that high security nuclear facilities maintain an on-site armed
Nuclear Response Force (ldquoNRFrdquo)126 The NRF is composed of specialized NSOs
Section 32 of the Nuclear Security Regulations requires the NRF to be capable of making
an effective intervention taking into account the threat
121 Ibid s 27(1)(a)122 Ibid s 27(1)(b)123 Ibid s 27(2)124 Ibid s 27(5)(a)125 Ibid s 27(5)(b)126 Ibid s 32
50
Members of the NRF are mandated by the Nuclear Security Regulations to be ldquotrained in
the use of firearms authorized to carry firearms in Canada and qualified to use themrdquo127
However to satisfy this requirement the NRF resorts to the PWPA since the federal
regulations do not authorize the NRF to carry firearms without a licence However
under s 2(1) of the PWPA NSOs are designated as ldquoguardsrdquo with the powers of a peace
officer most significantly to carry and use firearms without having to be licensed128
Such a designation also enables the OPG to acquire and dispose of firearms
In the consultations I had with the OPG and the CNSC they advised me that NSOs
receive training equivalent to Canadian police standards and that NRF officers receive
training equivalent to federal and provincial police tactical team requirements
Another aspect of the PWPA used to secure nuclear power plants relates to powers
exercised by NSOs in ldquocontrolled areasrdquo The federal regulations do not provide the
NSOs with any power to demand identification within this area However pursuant to
the PWPA as appointed ldquoguardsrdquo the NSOs have the power to demand identity
verification in the controlled area They also have the authority to arrest anyone who
obstructs NSOs in the performance of their duties under the PWPA
In addition to using the PWPA to secure the controlled areas I have been advised by the
OPG that NSOs use powers pursuant to the PWPA to secure areas within 100 metres of a
nuclear facilityrsquos property line immediately adjacent to the controlled area These powers
are exercised under the broad language of the PWPA regarding ldquoapproaches to public
127 Ibid s 1 (on-site nuclear response force definition)128 Section 11707 of the Criminal Code exempts peace officers from licensing requirements for possessing firearms and other prohibited and restricted weapons
51
worksrdquo This is an illustration of the problem with the vagueness of this language in the
legislation As these powers are exercised on public land they could be challenged as a
potential infringement on individual rights and freedoms However I have been advised
that there have been no such incidents to date The need to ensure the security of these
facilities must be taken into the balance
NSOs must be able to monitor and control access to the controlled areas and areas close
to a nuclear power plantrsquos property line This provides for a more secure perimeter
around these facilities They need authority to challenge individuals acting in a suspicious
manner or conducting surveillance of nuclear facilities The OPG has informed me that
areas outside a nuclear facilityrsquos property line immediately adjacent to the controlled
area are still close enough to take advantage of the short distance to conduct intelligence
using high-powered surveillance equipment These nuclear power plants are not located
on isolated islands and are therefore vulnerable Both the Pickering Nuclear Generating
Station and the Darlington Nuclear Generating Station operate within major urban areas
being 30 km and 60 km east of downtown Toronto respectively I am advised that
previous events such as ldquoThe Toronto 18rdquo129 have shown that those intent on targeting
vital infrastructure such as power generating facilities often use reconnaissance and
intelligence gathering as precursor tactics
Recommendation
If the PWPA is to be repealed it is imperative that those who secure our nuclear and
power generating facilities be given the requisite specific legislative powers to do so
129 See for example ldquoLast 2 Toronto 18 accused found guiltyrdquo CBC News (23 June 2010) online cbcca lthttpwwwcbccanewscanadatorontostory20100623toronto-18-verdicthtmlgt
52
The source for these powers should be set out in the federal Nuclear Security
Regulations However if this is not a desired option the Government of Ontario must
consider specific legislation setting out the specific powers required to properly secure
these facilities and the specific location in which these powers can be exercised Such
legislation should not be passed without proper notice consultation and legislative
debate
53
SECTION 6 CONCLUSION
The PWPA was enacted in 1939 to support the war effort At the time the protection of
Ontariorsquos hydroelectric facilities from sabotage was of particular concern Since then the
PWPA has been used to provide the legal foundation for the powers exercised by the
police in providing court security and even more recently by the OPG in securing
nuclear power facilities In June 2010 the PWPA was used to provide powers to secure
intergovernmental conferences The vagueness of the PWPA permits it to be used in
situations when it is arguably not necessary and potentially abusive In my view the
PWPA has been used for purposes beyond its original intent
The time for the PWPA seems to have passed If the Government of Ontario enacts as I
have suggested specific legislation to provide for courthouse security and power
generating infrastructure security it would appear that there is no longer a need for the
PWPA I am also mindful of the existence of counter-terrorism and emergencies
legislation to deal with these situations as they arise
ldquoIn determining the boundaries of police powers caution is required to ensure the proper
balance between preventing excessive intrusions on an individualrsquos liberty and privacy
and enabling the police to do what is reasonably necessary to perform their duties in
protecting the publicrdquo130 The overly broad and vague language of the PWPA does not
strike this required balance with individual rights and freedoms
The late Justice Jackson of the United States Supreme Court stated that every
emergency power once conferred ldquolies about like a loaded weapon ready for the hand of
130 R v Clayton [2007] 2 SCR 725 at 742
54
any authority that can bring forward a plausible claim of an urgent needrdquo131 The need to
protect the public must be balanced with the requirement to preserve fundamental rights
and freedoms
Yet at the same time ldquoCanadians are entitled to demand the best public order policing
possible from their governmentrdquo132 There is no question that we live in a different world
post 911 We live in difficult times with constant threats both domestically and from
abroad The police clearly need to be given adequate powers to carry out their duties
The police use their expertise on a daily basis to assess the powers they require In
instances when they take action that exceeds their powers their actions are examined by
various mandated bodies This process I believe results in the proper balance between
police powers and individual rights and freedoms Therefore any legislation that purports
to grant special police powers must be specific and direct and developed in consultation
with stakeholders and tested through thorough debate in our transparent democratic
system
131 Korematsu v United States 323 US 214 (1944)132 Supra note 26 p 8
55
parades It would in my view be quite impractical and unnecessary to legislate an
extensive code of police powers given their common law and statutory responsibilities to
generally maintain public order It is not advisable in my opinion to be prescriptive in
any way regarding what actions the police can take since they must assess what the
situation warrants while at the same time considering individual rights and freedoms
The details of any police response to an emergency must be tailored to the exigencies
related to the situation
The police clearly have common law and statutory authority to conduct warrantless
searches in specific situations (ldquoin exigent circumstancesrdquo)74 However when
warrantless searches must be carried out on a regular routine basis the police are acting
more like full time security guards and there should be specific statutory authority
provided to give such powers
I certainly accept the general proposition the authors assert that the mobility rights of
citizens should not be unreasonably or unfairly dealt with However one only need be
aware of the massive amount of construction taking place on the streets of Toronto as this
Report is being written to appreciate that it is not always reasonable to expect that ldquothe
rights of businesses homeowners and ordinary citizens to go about their routine
activities without interruptionrdquo75 will go unhindered While generally desirable it cannot
be legally guaranteed At the same time the authors do concede that ldquoimportant as they
74 Supra note 42 s 4871175 Supra note 65 p 89
34
are the rights of assembly movement and protest are not unqualified They can ndash and
should ndash be balanced against other important public needsrdquo76
In my view public policing at times requires innovation as it often benefits from
creative problem solving If police abuse their common law powers related to ldquopublic
order policingrdquo they are accountable to a multiplicity of authorities and the rule of law
most particularly the Charter The legal rights outlined in the Charter such as ldquothe
principles of fundamental justicerdquo77 security ldquoagainst unreasonable search and seizurerdquo78
and ldquothe right not to be arbitrarily detained or imprisonedrdquo79 are described very
generally However they were chosen deliberately as it was recognized that in each case
there is an inherent tension between imposing security measures and fundamental rights
and freedoms Determining which is paramount will be based on the facts of each case
76 Ibid p 9177 Canadian Charter of Rights and Freedoms s 7 Part I of the Constitution Act 1982 being Schedule B to the Canada Act 1982 (UK) 1982 c 1178 Ibid s 879 Ibid s 9
35
SECTION 5 LEGAL ANALYSIS OF THE PUBLIC WORKS PROTECTION ACT
A Legal Analysis of the Legislation
Many stakeholders have questioned the constitutional validity of the PWPA and O Reg
23310 The Ontario Ombudsman seriously questioned whether O Reg 23310 could
pass ldquoconstitutional musterrdquo80 The CCLA suggested that the broad police powers
granted under the PWPA were inconsistent with the Charter81
To the same effect were comments made by Premier Dalton McGuinty who described
the PWPA as ldquoan archaic law that was used to undermine Torontoniansrsquo civil rights
during the G20rdquo82 He elaborated83
The issue is whether itrsquos appropriate given our present-day values and given an old law which I am confident doesnrsquot strike the balance that you and I would want today in terms of public safety and individual freedom of expressionhellipWhen you start talking about civil rights individual freedoms yoursquore talking about those things that in fact define us as a free and democratic societyhellipItrsquos something that is real and meaningful and important to all of us
The Terms of Reference for this Review do not require that I conduct a constitutional
analysis of the PWPA I have however been asked to consider areas for reform and if
appropriate make specific recommendations for amendment or repeal This does require
that I therefore consider whether the legislation may be vulnerable to constitutional
challenge
Section 2(b) of the Charter guarantees everyone the fundamental freedom of expression
The definition of ldquoexpressionrdquo has been interpreted broadly ldquoActivity is expressive if it
80 Supra note 32 at para 23381 Supra note 26 p 982 Robert Benzie and Rob Ferguson ldquoMcGuinty shifts focus to fixing G20 lawrdquo Toronto Star (10 December 2010) online thestarcom lthttpwwwthestarcomnewscanadaarticle905436--mcguinty-shifts-focus-to-fixing-g20-lawgt 83 Ibid
36
attempts to convey meaningrdquo84 While freedom of expression is not absolute there is
very little that is not considered expression However expression that advocates violence
is not protected under s 2(b)85
The Supreme Court of Canada in Committee for the Commonwealth of Canada v
Canada held that s 2(b) ldquodoes not encompass the right to use any and all government
property for purposes of disseminating onersquos views on public matters but I have no doubt
that it does include the right to use for that purpose streets and parks which are dedicated
to the use of the public subject no doubt to reasonable regulation to ensure their
continued use for the purposes to which they are dedicatedrdquo86 It seems clear that
protesting in public streets is a form of expression protected by s 2(b) Protesting at an
intergovernmental conference is clearly expressive in nature
In challenges alleging that a statute contravenes s 2(b) of the Charter a court would
examine whether the purpose or effect of a law contravenes section 2(b)87 There is no
reason to suggest that the purpose of the PWPA was to infringe the freedom of
expression The purpose of the PWPA is to protect important public infrastructures A
court would then have to consider whether the effect of the PWPA may have resulted in
an infringement of freedom of expression
O Reg 23310 defined significant portions of downtown Toronto as a ldquopublic workrdquo
Section 3(c) of the PWPA allows peace officers to refuse entry into public works which
therefore limits the areas in which protesters could express themselves By creating the
84 Irwin Toy Ltd v Queacutebec (Attorney General) [1989] 1 SCR 927 at 96885 Ibid at 97086 [1991] 1 SCR 139 at 165-16687 Peter Hogg Constitutional Law of Canada loose-leaf (consulted on 7 January 2011) 5th ed (Toronto Thomson Reuters Canada Limited 2007) at 43-6
37
relatively large security perimeter designated by the regulation individuals may allege
they were not permitted to communicate directly with those they were protesting against
Furthermore individuals could not communicate in public places such as public streets
where the right to freedom of expression has previously been found to exist88
Commissioner Ted Hughes completed an interim report following a public hearing into
the complaints regarding events that took place with respect to the Asia Pacific Economic
Cooperation (APEC) Conference in Vancouver British Columbia in November 1997
Commissioner Hughes recommended that generous opportunity should be afforded to
peaceful protesters to be seen in their protest activities by guests at the event89
Section 7 of the Charter provides that ldquoEveryone has the right to life liberty and security
of the person and the right not to be deprived thereof except in accordance with the
principles of fundamental justicerdquo The PWPA raises issues regarding the liberty and
security of the person in providing for warrantless searches and stopping for
identification Furthermore vague laws offend two fundamental values of our legal
system90 Firstly individuals are not provided with sufficient guidance as to what
behaviour a law prohibits Secondly those in charge of enforcing the law are not
provided with clear guidance as to how to enforce it A vague law can lead to inconsistent
and arbitrary enforcement91
88 Supra note 86 89 Canada Commission for Public Complaints Against the RCMP APEC ndash Commission Interim Report (31 July 2001) at s 3111 (Commissioner Ted Hughes QC) online Commission for Public Complaints Against the RCMP lthttpwwwcpc-cppgccaprrrepphrapecapec-31-engaspxgt90 Supra note 87 at 47-60 91 ldquoA vague provision does not provide an adequate basis for legal debate that is for reaching a conclusion as to its meaning by reasoned analysis applying legal criteria It does not sufficiently delineate any area of risk and thus can provide neither fair notice to the citizen nor a limitation of enforcement discretion Such
38
As described by Professor Hogg92
The requirement that any limit on rights be prescribed by law reflects two values that are basic to constitutionalism or the rule of law First in order to preclude arbitrary and discriminatory action by government officials all official action in derogation of rights must be authorized by law Secondly citizens must have reasonable opportunity to know what is prohibited so that they can act accordingly Both these values are satisfied by a law that fulfils two requirements (1) the law must be adequately accessible to the public and (2) the law must be formulated with sufficient precision to enable people to regulate their conduct by it and to provide guidance to those who apply the law
As I stated earlier the phrase ldquoany approach theretordquo contained in s 3(a) of the PWPA is
potentially vague No criteria are provided to assist in determining when one is on ldquoany
approach theretordquo A phrase such as ldquoany approach theretordquo is subject to many potential
interpretations It is arguable that this language does not provide reasonable guidance for
individuals to obey the law and for the law to be consistently enforced
Section 8 of the Charter provides that ldquoEveryone has the right to be secure against
unreasonable search or seizurerdquo A warrantless search or seizure is only reasonable if the
search was authorized by law the law itself is reasonable and the manner in which the
search carried out was reasonable93 The fact that no reasonable or probable suspicions
are needed to carry out a search pursuant to s 3(b) of the PWPA raises some issues The
only prerequisite to such a search is that the person or vehicle being subjected to a search
is entering or attempting to enter a public work
a provision is not intelligible to use the terminology of previous decisions of this Court and therefore it fails to give sufficient indications that could fuel a legal debaterdquo (R v Nova Scotia Pharmaceutical Society [1992] 2 SCR 606 at 639-640) 92 Supra note 87 at 38-1293 R v Nolet [2010] SCJ No 24 at para 21
39
Whether the PWPArsquos s 3(b) authority to undertake warrantless searches is ldquoreasonablerdquo
depends on the reasonableness of the impact on the subject of the search ldquoThe
individuals reasonable expectation of privacy must of course be balanced against the
public interest in effective law enforcementrdquo94 It is harder to justify a warrantless search
where the reasonable expectation of privacy is higher For example interference with
bodily integrity will raise the standard of reasonableness Conversely in situations where
people expect to have a lower level of privacy the standard to prove reasonableness is
lower
One rightfully has some expectation of privacy when in public but it does not rise to the
level of privacy that one expects in onersquos home The expectation of privacy further
decreases when one attempts to enter a ldquopublic workrdquo especially in the context of a
secured barrier to an intergovernmental conference
Section 9 of the Charter provides that ldquoEveryone has the right not to be arbitrarily
detained or imprisonedrdquo95 Under s 3(a) of the PWPA a person entering or attempting to
enter or approach a public work must provide his or her name and address and state the
purpose for which he or she desires to enter the public work In order for a guard or
peace officer to carry out this duty the guard or peace officer may ldquostoprdquo the person from
further approaching or entering the public work and the person is not permitted under the
statute to decide not to enter By so doing it is arguable the guard or peace officer has
assumed control over the movement of the individual by a demand or direction The
94 R v Rao [1984] OJ No 3180 at para 79 (CA)95 ldquoDetention under s 9hellipof the Charter refers to a suspension of the individualrsquos liberty interest by a significant physical or psychological restraint Psychological detention is established either where the individual has a legal obligation to comply with the restrictive request or demand or a reasonable person would conclude by reason of the state conduct that he or she had no choice but to complyrdquo (R v Grant [2009] SCJ No 32 at para 44)
40
PWPA provides for a significant legal consequence if the demand or direction is not
followed since ldquoEvery person who neglects or refuses to comply with a request or
direction made under this Act by a guard or peace officer and every person found upon a
public work or any approach thereto without lawful authority the proof whereof lies on
him or her is guilty of an offence and on conviction is liable to a fine of not more than
$500 or to imprisonment for a term of not more than two months or to bothrdquo96
Pursuant to s 3(b) of the PWPA a guard or peace officer may search any person entering
or attempting to enter a public work These searches would necessitate the detention of a
person If a guard or peace officer performs such a search he or she has taken control
over the movement of the person by a demand or direction The same serious legal
consequence results from failing to obey this demand or direction as that which results
from failing to obey the demand or direction pursuant to s 3(a) of the PWPA As a
result ldquodetentionsrdquo could occur pursuant to both s 3(a) and s 3(b) of the PWPA
The question that would need to be addressed in any challenge to the PWPA is whether
the detentions permitted by the PWPA are arbitrary in nature The use of the term ldquoany
approach theretordquo is vague and imprecise A person could be deemed to be on ldquoany
approach theretordquo a great distance from the entrance of a public work and their detention
might very well be arbitrary In addition the fact that the guards and peace officers
determine the boundaries of the ldquoapproachesrdquo which cannot be contested seems
arbitrary as well as who they chose to search
96 It should be noted that not all communications with state authorities and police officers will amount to a detention The question is whether a person may reasonably believe that he or she is free to refuse to comply
41
Section 11(d) of the Charter provides that ldquoAny person charged with an offence has the
right to be presumed innocent until proven guilty according to law in a fair and public
hearing by an independent and impartial tribunalrdquo This requires that the Crown have the
burden of proving the guilt of an individual charged with an offence97 Provisions that
place the burden on the accused to disprove on the balance of probabilities an essential
element of an offence raises s 11(d) concerns because convictions would be possible
even if reasonable doubt existed98 The presumption of innocence is not only infringed
upon by a requirement that an accused disprove an essential element of an offence but
also any requirement on an accused to prove a fact on the balance of probabilities to
avoid conviction
Section 5(1) of the PWPA states that ldquoEvery person who neglects or refuses to comply
with a request or direction made under this Act by a guard or peace officer and every
person found upon a public work or any approach thereto without lawful authority the
proof whereof lies on him or her is guilty of an offence and on conviction is liable to a
fine of not more than $500 or to imprisonment for a term of not more than two months or
to bothrdquo For the offence of being found upon a public work or on any approach to a
public work without lawful authority the burden of proof has been ldquoshiftedrdquo from the
Crown to the accused to prove lawful authority
As the foregoing analysis reveals there are certainly many concerns that arise when one
places the PWPA under the lens of the Charter However the rights and freedoms
provided by the Charter are not absolute They are ldquosubject only to such reasonable
97 R v Oakes [1986] 1 SCR 10398 Ibid at 132
42
limits prescribed by law as can be demonstrably justified in a free and democratic
societyrdquo99
In assessing whether a law which infringes the Charter is saved by s 1 a court examines
both the object of the law and the measures taken to achieve that objective A lawrsquos
objective achieves the status of being sufficiently important to justify overriding a
Charter right only when it is consistent with the values of a free and democratic society
The objective must relate to pressing and substantial concerns and not concerns that are
trivial and must be focussed on ldquothe realization of collective goals of fundamental
importancerdquo100 The measures adopted must be ldquorationally connectedrdquo to the objective of
the law101 The measures ldquoshould impair lsquoas little as possiblersquo the right or freedom in
questionrdquo102 Furthermore there must be ldquoa proportionality between the effects of the
measures which are responsible for limiting the Charter right or freedom and the
objective which has been identified as of lsquosufficient importancersquordquo103
An issue that may affect whether the potential limitation on rights and freedoms of the
PWPA and O Reg 23310 were ldquoprescribed by lawrdquo is whether the regulation was
adequately accessible to the public The Ontario Ombudsman the CCLA and the Ontario
Bar Association (ldquoOBArdquo) all noted a lack of notice regarding O Reg 23310 and its
effects prior to and during the G20 While the text of the regulation was available prior
99 Charter s 1 The Superior Court of Quebec decision of Tremblay v Queacutebec (Attorney General) [2001] JQ No 1504 (CS) involved an interim injunction brought by an applicant who was denied entry into the secured perimeter during the 2001 Summit of the Americas in Queacutebec City The applicant sought an injunction to either eliminate the security barrier or to be given a pass to let him within the secured perimeter Even though the Court held that the erection of the security zone violated the applicantrsquos right to freedom of expression and peaceful assembly The court held that the infringement was ldquodemonstrably justified in a free and democratic societyrdquo100 Supra note 97 at 136101 Ibid at 139102 Ibid103 Ibid
43
to the G20 it was only available on a website not frequently accessed by the public
Since O Reg 23310 was not published in The Ontario Gazette until after it was
revoked it may be that the regulation was not adequately accessible to the public
Reverse onus offences have been found to be ldquorationally connectedrdquo when there is plainly
a rational connection between the proven fact and the fact to be presumed Reverse
onuses have also been upheld when the burden placed on the Crown would be virtually
impossible to meet (such as proving sanity)104 Even if the accused only has the burden
of disproving the fact that heshe did not have lawful authority to be in a public work or
on an approach thereto there may not be a rational connection between the proven fact
and the fact to be presumed
The history of threats and violence at previous intergovernmental conferences
demonstrated that the protection of G20 participants was a pressing and substantial
concern However given the broadness of the PWPA every exercise of it raises the
potential for Charter scrutiny
Recommendation
Given the public policy considerations I have raised regarding the PWPA and Charter
concerns that could arise I recommend that the PWPA be repealed after the Province has
considered potential policy and security gaps as a result of its repeal
B Other uses of the Public Works Protection Act
It appears from my consultations with stakeholder groups that if the PWPA is repealed
104 R v Chaulk [1990] 3 SCR 1303 at 1340
44
there are two areas which may require legislation to provide specific peace officer
powers These two areas are court security and the protection of nuclear power facilities
and other power generating infrastructures
1 Court Security
During my decade as Ontariorsquos Attorney General (1975 to 1985) there were three
murders in provincial courthouses as well as many threats to members of courthouse staff
and others As violent acts in courthouses can be anticipated courtroom security is often
required
Individuals are compelled to go to court for a variety of reasons such as appearing as an
accused as a witness or for jury duty To provide protection to those who work there or
are compelled to attend an adequate level of court security may require a search without
warrant of each and every individual who seeks to enter a courthouse It is not reasonable
to require prior judicial authorization for each search that takes place
The courts have considered the constitutionality of these provisions of the PWPA in
conjunction with section 137 of the Ontario Police Services Act in the context of court
security
Section 137 of the Ontario Police Services Act imposes a responsibility on municipal
police services boards to secure the premises where court proceedings are conducted and
includes
1 Ensuring the security of judges and of persons taking part in or attending proceedings
45
2 During the hours when judges and members of the public are normally present ensuring the security of the premises
3 Ensuring the secure custody of persons in custody who are on or about the premises including persons taken into custody at proceedings
4 Determining appropriate levels of security for the purposes of paragraphs 1 2 and 3
In R v Campanella105 Ms Campanella was attending the John Sopinka Courthouse in
Hamilton At the courthouse there were signs posted stating that those who entered
would be searched for weapons When Ms Campanellarsquos bag was searched marijuana
was found and she was charged with the possession of marijuana She argued that her s
8 Charter protection against unreasonable search and seizure had been violated and the
marijuana discovered during the search should therefore be excluded as evidence The
trial judge and the summary convictions appeal court rejected the section 8 Charter
argument and the appellant appealed to the Ontario Court of Appeal
The Ontario Court of Appeal agreed that ldquogiven the importance of the government
objective and the context in which these searches take place it is reasonable to authorize
warrantless searches of those entering courthouse facilitiesrdquo106 The Court stated ldquothe
only effective way to diminish the risk in a large courthouse is to subject everyone
without prior security clearance to some kind of inspection I can see no other feasible
means of achieving the aimrdquo107
The Court also pointed out the concern relating to the erosion of the benefits and
105 [2002] OJ No 5104 (SCJ) affrsquod [2005] OJ No 1345 (CA) [ldquoCampanellardquo]106 R v Campanella [2005] OJ No 1345 at para 17 (CA)107 Ibid at para 19
46
protections conferred by s 8 of the Charter108
I am sensitive to the concern that we should not erode the benefits and protections of s 8 by gradually sanctioning ever-greater intrusions into privacy because of unfounded fears We should not lightly accept that searches in public places are justified solely because people have become used to them and expect them However the record in this case establishes the justification for the kinds of searches carried out in this case
Ultimately the appeal was dismissed and s 137 of the Police Services Act and s 3(b) of
the PWPA) were held to comply with s 8 of the Charter109
In its consultations with me the OBA similarly stated that the existing nature of court
security is necessary and is generally ldquowell toleratedrdquo At the same time however it
submits that the security regime should not be ldquoshoehornedrdquo into the PWPA regime and
that it would be preferable to provide a legislative framework tailored for the specific
security requirements While the PWPA has been relied upon as support for the exercise
of powers by the police in providing court security the OBA submits that the PWPArsquos
ldquosingle security schemerdquo which declares something a ldquopublic workrdquo is an ldquoawkward
blunt instrument in a world where more specialized tools are necessaryrdquo When
warrantless searches are being done on a routine basis it is advisable to have specific
legislation providing peace officers with such power
Recommendation
Court security legislation is currently in place in many jurisdictions across Canada and
contain provisions that permit warrantless searches of persons wanting to access a
108 Ibid at para 25109 The Court in R v SS [2005] OJ No 5002 (SCJ) agreed with the findings and rationale of the Court of Appeal in Campanella
47
courthouse The constitutional validity of such legislation in Manitoba was upheld by that
provincersquos highest court110
Given the ongoing need for warrantless searches at courthouses the Province of Ontario
should consider specific court security legislation in Ontario to support the security
measures in our courthouses if the PWPA is to be repealed taking into consideration the
responsibilities of the municipal police services boards provided in s 137 of the Police
Services Act This legislation should only be passed after proper notice consultation and
legislative debate
2 Power Generating Infrastructures
It is clear from the submissions that I received from representatives of OPG and the
Canadian Nuclear Safety Commission (ldquoCNSCrdquo) that the PWPA currently plays a role in
providing security officers with the powers to secure power generating infrastructures
including the ability to carry firearms and the ability to stop and require identification
from those in proximity to those nuclear plants
Security is of the utmost importance in protecting a nuclear power plant Members of the
public do not need to access a nuclear or similar power facility unless employed at the
facility or carrying out work for the facility111
The security of areas within nuclear power plants is governed by the Nuclear Security
110 R v Lindsay [2004] MJ No 380 (CA) 111 Though the discussion focuses on nuclear power plants I have been informed that other power generating infrastructures use the PWPA to designate their security officers as guards As a result if the PWPA is repealed it will be necessary to broaden the consultations in relation to these other power generating infrastructures
48
Regulations112 Every nuclear power plant must be located within a ldquoprotected areardquo113
This protected area is the area within a fenced perimeter which is alarmed and
continually patrolled This area must be equipped with devices that employ two
independent systems to detect intrusion into the area114 The Nuclear Security
Regulations also provide detailed specifications for the barrier which must enclose the
protected area115 In addition licensees must ldquoidentify all vital areas and implement
physical protection measures ndash including access control and measures designed to delay
unauthorized accessrdquo116
The Nuclear Security Regulations also provide detailed provisions regarding entry into
protected areas No person can ldquoenter a protected area without physical proof of the
recorded authorization of the licenseerdquo117 Further to this on entry into a protected area
ldquothat personrsquos identity shall be verified by two separate personnel identity verification
systems one of which is an access card reader and the other of which is a biometric
personnel identity verification devicerdquo118 Licensees must also ldquoensure that vehicle
portals are used for the entry and exit of land vehicles into and from a protected areardquo119
Physical protection measures are also required to reduce the chance of a forced land
vehicle entry into a protected area120
The power to conduct searches upon entry to a protected area is also provided by the
112 SOR2000-209 113 Ibid s 8114 Ibid s 11(a)(i)115 Ibid s 9116 Ibid s 141117 Ibid s 17(1)118 Ibid s 171119 Ibid s 91(1)120 Ibid s 91(4)
49
Nuclear Security Regulations Signs must be posted that are visible to people about to
enter the protected area stating that they must allow a nuclear security officer (ldquoNSOrdquo) to
ldquosearch them and everything in their possession including any land vehicle for weapons
and explosive substancesrdquo121 In addition when leaving the protected area people must
allow NSOs to ldquosearch them and everything in their possession including any land
vehicle for Category I II or III nuclear materialrdquo122 People are not permitted to enter or
leave a protected area unless these searches are carried out123 The Nuclear Security
Regulations provide for the method of search including ldquoa hand-held scanner a walk-
through scanner or any similar devicerdquo124 In addition if an NSO determines it
necessary a frisk search can be carried out by a person of the same sex125
I have been informed that the area outside of but adjacent to the ldquoprotected areardquo is
referred to as the ldquocontrolled areardquo This area includes roadways and waterways within
the nuclear facilityrsquos property boundaries adjacent to or in close proximity to the nuclear
power plantrsquos protected area and may be generally accessible to the public
As a result of the September 11 2001 terrorist attacks the Nuclear Security Regulations
were amended to require that high security nuclear facilities maintain an on-site armed
Nuclear Response Force (ldquoNRFrdquo)126 The NRF is composed of specialized NSOs
Section 32 of the Nuclear Security Regulations requires the NRF to be capable of making
an effective intervention taking into account the threat
121 Ibid s 27(1)(a)122 Ibid s 27(1)(b)123 Ibid s 27(2)124 Ibid s 27(5)(a)125 Ibid s 27(5)(b)126 Ibid s 32
50
Members of the NRF are mandated by the Nuclear Security Regulations to be ldquotrained in
the use of firearms authorized to carry firearms in Canada and qualified to use themrdquo127
However to satisfy this requirement the NRF resorts to the PWPA since the federal
regulations do not authorize the NRF to carry firearms without a licence However
under s 2(1) of the PWPA NSOs are designated as ldquoguardsrdquo with the powers of a peace
officer most significantly to carry and use firearms without having to be licensed128
Such a designation also enables the OPG to acquire and dispose of firearms
In the consultations I had with the OPG and the CNSC they advised me that NSOs
receive training equivalent to Canadian police standards and that NRF officers receive
training equivalent to federal and provincial police tactical team requirements
Another aspect of the PWPA used to secure nuclear power plants relates to powers
exercised by NSOs in ldquocontrolled areasrdquo The federal regulations do not provide the
NSOs with any power to demand identification within this area However pursuant to
the PWPA as appointed ldquoguardsrdquo the NSOs have the power to demand identity
verification in the controlled area They also have the authority to arrest anyone who
obstructs NSOs in the performance of their duties under the PWPA
In addition to using the PWPA to secure the controlled areas I have been advised by the
OPG that NSOs use powers pursuant to the PWPA to secure areas within 100 metres of a
nuclear facilityrsquos property line immediately adjacent to the controlled area These powers
are exercised under the broad language of the PWPA regarding ldquoapproaches to public
127 Ibid s 1 (on-site nuclear response force definition)128 Section 11707 of the Criminal Code exempts peace officers from licensing requirements for possessing firearms and other prohibited and restricted weapons
51
worksrdquo This is an illustration of the problem with the vagueness of this language in the
legislation As these powers are exercised on public land they could be challenged as a
potential infringement on individual rights and freedoms However I have been advised
that there have been no such incidents to date The need to ensure the security of these
facilities must be taken into the balance
NSOs must be able to monitor and control access to the controlled areas and areas close
to a nuclear power plantrsquos property line This provides for a more secure perimeter
around these facilities They need authority to challenge individuals acting in a suspicious
manner or conducting surveillance of nuclear facilities The OPG has informed me that
areas outside a nuclear facilityrsquos property line immediately adjacent to the controlled
area are still close enough to take advantage of the short distance to conduct intelligence
using high-powered surveillance equipment These nuclear power plants are not located
on isolated islands and are therefore vulnerable Both the Pickering Nuclear Generating
Station and the Darlington Nuclear Generating Station operate within major urban areas
being 30 km and 60 km east of downtown Toronto respectively I am advised that
previous events such as ldquoThe Toronto 18rdquo129 have shown that those intent on targeting
vital infrastructure such as power generating facilities often use reconnaissance and
intelligence gathering as precursor tactics
Recommendation
If the PWPA is to be repealed it is imperative that those who secure our nuclear and
power generating facilities be given the requisite specific legislative powers to do so
129 See for example ldquoLast 2 Toronto 18 accused found guiltyrdquo CBC News (23 June 2010) online cbcca lthttpwwwcbccanewscanadatorontostory20100623toronto-18-verdicthtmlgt
52
The source for these powers should be set out in the federal Nuclear Security
Regulations However if this is not a desired option the Government of Ontario must
consider specific legislation setting out the specific powers required to properly secure
these facilities and the specific location in which these powers can be exercised Such
legislation should not be passed without proper notice consultation and legislative
debate
53
SECTION 6 CONCLUSION
The PWPA was enacted in 1939 to support the war effort At the time the protection of
Ontariorsquos hydroelectric facilities from sabotage was of particular concern Since then the
PWPA has been used to provide the legal foundation for the powers exercised by the
police in providing court security and even more recently by the OPG in securing
nuclear power facilities In June 2010 the PWPA was used to provide powers to secure
intergovernmental conferences The vagueness of the PWPA permits it to be used in
situations when it is arguably not necessary and potentially abusive In my view the
PWPA has been used for purposes beyond its original intent
The time for the PWPA seems to have passed If the Government of Ontario enacts as I
have suggested specific legislation to provide for courthouse security and power
generating infrastructure security it would appear that there is no longer a need for the
PWPA I am also mindful of the existence of counter-terrorism and emergencies
legislation to deal with these situations as they arise
ldquoIn determining the boundaries of police powers caution is required to ensure the proper
balance between preventing excessive intrusions on an individualrsquos liberty and privacy
and enabling the police to do what is reasonably necessary to perform their duties in
protecting the publicrdquo130 The overly broad and vague language of the PWPA does not
strike this required balance with individual rights and freedoms
The late Justice Jackson of the United States Supreme Court stated that every
emergency power once conferred ldquolies about like a loaded weapon ready for the hand of
130 R v Clayton [2007] 2 SCR 725 at 742
54
any authority that can bring forward a plausible claim of an urgent needrdquo131 The need to
protect the public must be balanced with the requirement to preserve fundamental rights
and freedoms
Yet at the same time ldquoCanadians are entitled to demand the best public order policing
possible from their governmentrdquo132 There is no question that we live in a different world
post 911 We live in difficult times with constant threats both domestically and from
abroad The police clearly need to be given adequate powers to carry out their duties
The police use their expertise on a daily basis to assess the powers they require In
instances when they take action that exceeds their powers their actions are examined by
various mandated bodies This process I believe results in the proper balance between
police powers and individual rights and freedoms Therefore any legislation that purports
to grant special police powers must be specific and direct and developed in consultation
with stakeholders and tested through thorough debate in our transparent democratic
system
131 Korematsu v United States 323 US 214 (1944)132 Supra note 26 p 8
55
are the rights of assembly movement and protest are not unqualified They can ndash and
should ndash be balanced against other important public needsrdquo76
In my view public policing at times requires innovation as it often benefits from
creative problem solving If police abuse their common law powers related to ldquopublic
order policingrdquo they are accountable to a multiplicity of authorities and the rule of law
most particularly the Charter The legal rights outlined in the Charter such as ldquothe
principles of fundamental justicerdquo77 security ldquoagainst unreasonable search and seizurerdquo78
and ldquothe right not to be arbitrarily detained or imprisonedrdquo79 are described very
generally However they were chosen deliberately as it was recognized that in each case
there is an inherent tension between imposing security measures and fundamental rights
and freedoms Determining which is paramount will be based on the facts of each case
76 Ibid p 9177 Canadian Charter of Rights and Freedoms s 7 Part I of the Constitution Act 1982 being Schedule B to the Canada Act 1982 (UK) 1982 c 1178 Ibid s 879 Ibid s 9
35
SECTION 5 LEGAL ANALYSIS OF THE PUBLIC WORKS PROTECTION ACT
A Legal Analysis of the Legislation
Many stakeholders have questioned the constitutional validity of the PWPA and O Reg
23310 The Ontario Ombudsman seriously questioned whether O Reg 23310 could
pass ldquoconstitutional musterrdquo80 The CCLA suggested that the broad police powers
granted under the PWPA were inconsistent with the Charter81
To the same effect were comments made by Premier Dalton McGuinty who described
the PWPA as ldquoan archaic law that was used to undermine Torontoniansrsquo civil rights
during the G20rdquo82 He elaborated83
The issue is whether itrsquos appropriate given our present-day values and given an old law which I am confident doesnrsquot strike the balance that you and I would want today in terms of public safety and individual freedom of expressionhellipWhen you start talking about civil rights individual freedoms yoursquore talking about those things that in fact define us as a free and democratic societyhellipItrsquos something that is real and meaningful and important to all of us
The Terms of Reference for this Review do not require that I conduct a constitutional
analysis of the PWPA I have however been asked to consider areas for reform and if
appropriate make specific recommendations for amendment or repeal This does require
that I therefore consider whether the legislation may be vulnerable to constitutional
challenge
Section 2(b) of the Charter guarantees everyone the fundamental freedom of expression
The definition of ldquoexpressionrdquo has been interpreted broadly ldquoActivity is expressive if it
80 Supra note 32 at para 23381 Supra note 26 p 982 Robert Benzie and Rob Ferguson ldquoMcGuinty shifts focus to fixing G20 lawrdquo Toronto Star (10 December 2010) online thestarcom lthttpwwwthestarcomnewscanadaarticle905436--mcguinty-shifts-focus-to-fixing-g20-lawgt 83 Ibid
36
attempts to convey meaningrdquo84 While freedom of expression is not absolute there is
very little that is not considered expression However expression that advocates violence
is not protected under s 2(b)85
The Supreme Court of Canada in Committee for the Commonwealth of Canada v
Canada held that s 2(b) ldquodoes not encompass the right to use any and all government
property for purposes of disseminating onersquos views on public matters but I have no doubt
that it does include the right to use for that purpose streets and parks which are dedicated
to the use of the public subject no doubt to reasonable regulation to ensure their
continued use for the purposes to which they are dedicatedrdquo86 It seems clear that
protesting in public streets is a form of expression protected by s 2(b) Protesting at an
intergovernmental conference is clearly expressive in nature
In challenges alleging that a statute contravenes s 2(b) of the Charter a court would
examine whether the purpose or effect of a law contravenes section 2(b)87 There is no
reason to suggest that the purpose of the PWPA was to infringe the freedom of
expression The purpose of the PWPA is to protect important public infrastructures A
court would then have to consider whether the effect of the PWPA may have resulted in
an infringement of freedom of expression
O Reg 23310 defined significant portions of downtown Toronto as a ldquopublic workrdquo
Section 3(c) of the PWPA allows peace officers to refuse entry into public works which
therefore limits the areas in which protesters could express themselves By creating the
84 Irwin Toy Ltd v Queacutebec (Attorney General) [1989] 1 SCR 927 at 96885 Ibid at 97086 [1991] 1 SCR 139 at 165-16687 Peter Hogg Constitutional Law of Canada loose-leaf (consulted on 7 January 2011) 5th ed (Toronto Thomson Reuters Canada Limited 2007) at 43-6
37
relatively large security perimeter designated by the regulation individuals may allege
they were not permitted to communicate directly with those they were protesting against
Furthermore individuals could not communicate in public places such as public streets
where the right to freedom of expression has previously been found to exist88
Commissioner Ted Hughes completed an interim report following a public hearing into
the complaints regarding events that took place with respect to the Asia Pacific Economic
Cooperation (APEC) Conference in Vancouver British Columbia in November 1997
Commissioner Hughes recommended that generous opportunity should be afforded to
peaceful protesters to be seen in their protest activities by guests at the event89
Section 7 of the Charter provides that ldquoEveryone has the right to life liberty and security
of the person and the right not to be deprived thereof except in accordance with the
principles of fundamental justicerdquo The PWPA raises issues regarding the liberty and
security of the person in providing for warrantless searches and stopping for
identification Furthermore vague laws offend two fundamental values of our legal
system90 Firstly individuals are not provided with sufficient guidance as to what
behaviour a law prohibits Secondly those in charge of enforcing the law are not
provided with clear guidance as to how to enforce it A vague law can lead to inconsistent
and arbitrary enforcement91
88 Supra note 86 89 Canada Commission for Public Complaints Against the RCMP APEC ndash Commission Interim Report (31 July 2001) at s 3111 (Commissioner Ted Hughes QC) online Commission for Public Complaints Against the RCMP lthttpwwwcpc-cppgccaprrrepphrapecapec-31-engaspxgt90 Supra note 87 at 47-60 91 ldquoA vague provision does not provide an adequate basis for legal debate that is for reaching a conclusion as to its meaning by reasoned analysis applying legal criteria It does not sufficiently delineate any area of risk and thus can provide neither fair notice to the citizen nor a limitation of enforcement discretion Such
38
As described by Professor Hogg92
The requirement that any limit on rights be prescribed by law reflects two values that are basic to constitutionalism or the rule of law First in order to preclude arbitrary and discriminatory action by government officials all official action in derogation of rights must be authorized by law Secondly citizens must have reasonable opportunity to know what is prohibited so that they can act accordingly Both these values are satisfied by a law that fulfils two requirements (1) the law must be adequately accessible to the public and (2) the law must be formulated with sufficient precision to enable people to regulate their conduct by it and to provide guidance to those who apply the law
As I stated earlier the phrase ldquoany approach theretordquo contained in s 3(a) of the PWPA is
potentially vague No criteria are provided to assist in determining when one is on ldquoany
approach theretordquo A phrase such as ldquoany approach theretordquo is subject to many potential
interpretations It is arguable that this language does not provide reasonable guidance for
individuals to obey the law and for the law to be consistently enforced
Section 8 of the Charter provides that ldquoEveryone has the right to be secure against
unreasonable search or seizurerdquo A warrantless search or seizure is only reasonable if the
search was authorized by law the law itself is reasonable and the manner in which the
search carried out was reasonable93 The fact that no reasonable or probable suspicions
are needed to carry out a search pursuant to s 3(b) of the PWPA raises some issues The
only prerequisite to such a search is that the person or vehicle being subjected to a search
is entering or attempting to enter a public work
a provision is not intelligible to use the terminology of previous decisions of this Court and therefore it fails to give sufficient indications that could fuel a legal debaterdquo (R v Nova Scotia Pharmaceutical Society [1992] 2 SCR 606 at 639-640) 92 Supra note 87 at 38-1293 R v Nolet [2010] SCJ No 24 at para 21
39
Whether the PWPArsquos s 3(b) authority to undertake warrantless searches is ldquoreasonablerdquo
depends on the reasonableness of the impact on the subject of the search ldquoThe
individuals reasonable expectation of privacy must of course be balanced against the
public interest in effective law enforcementrdquo94 It is harder to justify a warrantless search
where the reasonable expectation of privacy is higher For example interference with
bodily integrity will raise the standard of reasonableness Conversely in situations where
people expect to have a lower level of privacy the standard to prove reasonableness is
lower
One rightfully has some expectation of privacy when in public but it does not rise to the
level of privacy that one expects in onersquos home The expectation of privacy further
decreases when one attempts to enter a ldquopublic workrdquo especially in the context of a
secured barrier to an intergovernmental conference
Section 9 of the Charter provides that ldquoEveryone has the right not to be arbitrarily
detained or imprisonedrdquo95 Under s 3(a) of the PWPA a person entering or attempting to
enter or approach a public work must provide his or her name and address and state the
purpose for which he or she desires to enter the public work In order for a guard or
peace officer to carry out this duty the guard or peace officer may ldquostoprdquo the person from
further approaching or entering the public work and the person is not permitted under the
statute to decide not to enter By so doing it is arguable the guard or peace officer has
assumed control over the movement of the individual by a demand or direction The
94 R v Rao [1984] OJ No 3180 at para 79 (CA)95 ldquoDetention under s 9hellipof the Charter refers to a suspension of the individualrsquos liberty interest by a significant physical or psychological restraint Psychological detention is established either where the individual has a legal obligation to comply with the restrictive request or demand or a reasonable person would conclude by reason of the state conduct that he or she had no choice but to complyrdquo (R v Grant [2009] SCJ No 32 at para 44)
40
PWPA provides for a significant legal consequence if the demand or direction is not
followed since ldquoEvery person who neglects or refuses to comply with a request or
direction made under this Act by a guard or peace officer and every person found upon a
public work or any approach thereto without lawful authority the proof whereof lies on
him or her is guilty of an offence and on conviction is liable to a fine of not more than
$500 or to imprisonment for a term of not more than two months or to bothrdquo96
Pursuant to s 3(b) of the PWPA a guard or peace officer may search any person entering
or attempting to enter a public work These searches would necessitate the detention of a
person If a guard or peace officer performs such a search he or she has taken control
over the movement of the person by a demand or direction The same serious legal
consequence results from failing to obey this demand or direction as that which results
from failing to obey the demand or direction pursuant to s 3(a) of the PWPA As a
result ldquodetentionsrdquo could occur pursuant to both s 3(a) and s 3(b) of the PWPA
The question that would need to be addressed in any challenge to the PWPA is whether
the detentions permitted by the PWPA are arbitrary in nature The use of the term ldquoany
approach theretordquo is vague and imprecise A person could be deemed to be on ldquoany
approach theretordquo a great distance from the entrance of a public work and their detention
might very well be arbitrary In addition the fact that the guards and peace officers
determine the boundaries of the ldquoapproachesrdquo which cannot be contested seems
arbitrary as well as who they chose to search
96 It should be noted that not all communications with state authorities and police officers will amount to a detention The question is whether a person may reasonably believe that he or she is free to refuse to comply
41
Section 11(d) of the Charter provides that ldquoAny person charged with an offence has the
right to be presumed innocent until proven guilty according to law in a fair and public
hearing by an independent and impartial tribunalrdquo This requires that the Crown have the
burden of proving the guilt of an individual charged with an offence97 Provisions that
place the burden on the accused to disprove on the balance of probabilities an essential
element of an offence raises s 11(d) concerns because convictions would be possible
even if reasonable doubt existed98 The presumption of innocence is not only infringed
upon by a requirement that an accused disprove an essential element of an offence but
also any requirement on an accused to prove a fact on the balance of probabilities to
avoid conviction
Section 5(1) of the PWPA states that ldquoEvery person who neglects or refuses to comply
with a request or direction made under this Act by a guard or peace officer and every
person found upon a public work or any approach thereto without lawful authority the
proof whereof lies on him or her is guilty of an offence and on conviction is liable to a
fine of not more than $500 or to imprisonment for a term of not more than two months or
to bothrdquo For the offence of being found upon a public work or on any approach to a
public work without lawful authority the burden of proof has been ldquoshiftedrdquo from the
Crown to the accused to prove lawful authority
As the foregoing analysis reveals there are certainly many concerns that arise when one
places the PWPA under the lens of the Charter However the rights and freedoms
provided by the Charter are not absolute They are ldquosubject only to such reasonable
97 R v Oakes [1986] 1 SCR 10398 Ibid at 132
42
limits prescribed by law as can be demonstrably justified in a free and democratic
societyrdquo99
In assessing whether a law which infringes the Charter is saved by s 1 a court examines
both the object of the law and the measures taken to achieve that objective A lawrsquos
objective achieves the status of being sufficiently important to justify overriding a
Charter right only when it is consistent with the values of a free and democratic society
The objective must relate to pressing and substantial concerns and not concerns that are
trivial and must be focussed on ldquothe realization of collective goals of fundamental
importancerdquo100 The measures adopted must be ldquorationally connectedrdquo to the objective of
the law101 The measures ldquoshould impair lsquoas little as possiblersquo the right or freedom in
questionrdquo102 Furthermore there must be ldquoa proportionality between the effects of the
measures which are responsible for limiting the Charter right or freedom and the
objective which has been identified as of lsquosufficient importancersquordquo103
An issue that may affect whether the potential limitation on rights and freedoms of the
PWPA and O Reg 23310 were ldquoprescribed by lawrdquo is whether the regulation was
adequately accessible to the public The Ontario Ombudsman the CCLA and the Ontario
Bar Association (ldquoOBArdquo) all noted a lack of notice regarding O Reg 23310 and its
effects prior to and during the G20 While the text of the regulation was available prior
99 Charter s 1 The Superior Court of Quebec decision of Tremblay v Queacutebec (Attorney General) [2001] JQ No 1504 (CS) involved an interim injunction brought by an applicant who was denied entry into the secured perimeter during the 2001 Summit of the Americas in Queacutebec City The applicant sought an injunction to either eliminate the security barrier or to be given a pass to let him within the secured perimeter Even though the Court held that the erection of the security zone violated the applicantrsquos right to freedom of expression and peaceful assembly The court held that the infringement was ldquodemonstrably justified in a free and democratic societyrdquo100 Supra note 97 at 136101 Ibid at 139102 Ibid103 Ibid
43
to the G20 it was only available on a website not frequently accessed by the public
Since O Reg 23310 was not published in The Ontario Gazette until after it was
revoked it may be that the regulation was not adequately accessible to the public
Reverse onus offences have been found to be ldquorationally connectedrdquo when there is plainly
a rational connection between the proven fact and the fact to be presumed Reverse
onuses have also been upheld when the burden placed on the Crown would be virtually
impossible to meet (such as proving sanity)104 Even if the accused only has the burden
of disproving the fact that heshe did not have lawful authority to be in a public work or
on an approach thereto there may not be a rational connection between the proven fact
and the fact to be presumed
The history of threats and violence at previous intergovernmental conferences
demonstrated that the protection of G20 participants was a pressing and substantial
concern However given the broadness of the PWPA every exercise of it raises the
potential for Charter scrutiny
Recommendation
Given the public policy considerations I have raised regarding the PWPA and Charter
concerns that could arise I recommend that the PWPA be repealed after the Province has
considered potential policy and security gaps as a result of its repeal
B Other uses of the Public Works Protection Act
It appears from my consultations with stakeholder groups that if the PWPA is repealed
104 R v Chaulk [1990] 3 SCR 1303 at 1340
44
there are two areas which may require legislation to provide specific peace officer
powers These two areas are court security and the protection of nuclear power facilities
and other power generating infrastructures
1 Court Security
During my decade as Ontariorsquos Attorney General (1975 to 1985) there were three
murders in provincial courthouses as well as many threats to members of courthouse staff
and others As violent acts in courthouses can be anticipated courtroom security is often
required
Individuals are compelled to go to court for a variety of reasons such as appearing as an
accused as a witness or for jury duty To provide protection to those who work there or
are compelled to attend an adequate level of court security may require a search without
warrant of each and every individual who seeks to enter a courthouse It is not reasonable
to require prior judicial authorization for each search that takes place
The courts have considered the constitutionality of these provisions of the PWPA in
conjunction with section 137 of the Ontario Police Services Act in the context of court
security
Section 137 of the Ontario Police Services Act imposes a responsibility on municipal
police services boards to secure the premises where court proceedings are conducted and
includes
1 Ensuring the security of judges and of persons taking part in or attending proceedings
45
2 During the hours when judges and members of the public are normally present ensuring the security of the premises
3 Ensuring the secure custody of persons in custody who are on or about the premises including persons taken into custody at proceedings
4 Determining appropriate levels of security for the purposes of paragraphs 1 2 and 3
In R v Campanella105 Ms Campanella was attending the John Sopinka Courthouse in
Hamilton At the courthouse there were signs posted stating that those who entered
would be searched for weapons When Ms Campanellarsquos bag was searched marijuana
was found and she was charged with the possession of marijuana She argued that her s
8 Charter protection against unreasonable search and seizure had been violated and the
marijuana discovered during the search should therefore be excluded as evidence The
trial judge and the summary convictions appeal court rejected the section 8 Charter
argument and the appellant appealed to the Ontario Court of Appeal
The Ontario Court of Appeal agreed that ldquogiven the importance of the government
objective and the context in which these searches take place it is reasonable to authorize
warrantless searches of those entering courthouse facilitiesrdquo106 The Court stated ldquothe
only effective way to diminish the risk in a large courthouse is to subject everyone
without prior security clearance to some kind of inspection I can see no other feasible
means of achieving the aimrdquo107
The Court also pointed out the concern relating to the erosion of the benefits and
105 [2002] OJ No 5104 (SCJ) affrsquod [2005] OJ No 1345 (CA) [ldquoCampanellardquo]106 R v Campanella [2005] OJ No 1345 at para 17 (CA)107 Ibid at para 19
46
protections conferred by s 8 of the Charter108
I am sensitive to the concern that we should not erode the benefits and protections of s 8 by gradually sanctioning ever-greater intrusions into privacy because of unfounded fears We should not lightly accept that searches in public places are justified solely because people have become used to them and expect them However the record in this case establishes the justification for the kinds of searches carried out in this case
Ultimately the appeal was dismissed and s 137 of the Police Services Act and s 3(b) of
the PWPA) were held to comply with s 8 of the Charter109
In its consultations with me the OBA similarly stated that the existing nature of court
security is necessary and is generally ldquowell toleratedrdquo At the same time however it
submits that the security regime should not be ldquoshoehornedrdquo into the PWPA regime and
that it would be preferable to provide a legislative framework tailored for the specific
security requirements While the PWPA has been relied upon as support for the exercise
of powers by the police in providing court security the OBA submits that the PWPArsquos
ldquosingle security schemerdquo which declares something a ldquopublic workrdquo is an ldquoawkward
blunt instrument in a world where more specialized tools are necessaryrdquo When
warrantless searches are being done on a routine basis it is advisable to have specific
legislation providing peace officers with such power
Recommendation
Court security legislation is currently in place in many jurisdictions across Canada and
contain provisions that permit warrantless searches of persons wanting to access a
108 Ibid at para 25109 The Court in R v SS [2005] OJ No 5002 (SCJ) agreed with the findings and rationale of the Court of Appeal in Campanella
47
courthouse The constitutional validity of such legislation in Manitoba was upheld by that
provincersquos highest court110
Given the ongoing need for warrantless searches at courthouses the Province of Ontario
should consider specific court security legislation in Ontario to support the security
measures in our courthouses if the PWPA is to be repealed taking into consideration the
responsibilities of the municipal police services boards provided in s 137 of the Police
Services Act This legislation should only be passed after proper notice consultation and
legislative debate
2 Power Generating Infrastructures
It is clear from the submissions that I received from representatives of OPG and the
Canadian Nuclear Safety Commission (ldquoCNSCrdquo) that the PWPA currently plays a role in
providing security officers with the powers to secure power generating infrastructures
including the ability to carry firearms and the ability to stop and require identification
from those in proximity to those nuclear plants
Security is of the utmost importance in protecting a nuclear power plant Members of the
public do not need to access a nuclear or similar power facility unless employed at the
facility or carrying out work for the facility111
The security of areas within nuclear power plants is governed by the Nuclear Security
110 R v Lindsay [2004] MJ No 380 (CA) 111 Though the discussion focuses on nuclear power plants I have been informed that other power generating infrastructures use the PWPA to designate their security officers as guards As a result if the PWPA is repealed it will be necessary to broaden the consultations in relation to these other power generating infrastructures
48
Regulations112 Every nuclear power plant must be located within a ldquoprotected areardquo113
This protected area is the area within a fenced perimeter which is alarmed and
continually patrolled This area must be equipped with devices that employ two
independent systems to detect intrusion into the area114 The Nuclear Security
Regulations also provide detailed specifications for the barrier which must enclose the
protected area115 In addition licensees must ldquoidentify all vital areas and implement
physical protection measures ndash including access control and measures designed to delay
unauthorized accessrdquo116
The Nuclear Security Regulations also provide detailed provisions regarding entry into
protected areas No person can ldquoenter a protected area without physical proof of the
recorded authorization of the licenseerdquo117 Further to this on entry into a protected area
ldquothat personrsquos identity shall be verified by two separate personnel identity verification
systems one of which is an access card reader and the other of which is a biometric
personnel identity verification devicerdquo118 Licensees must also ldquoensure that vehicle
portals are used for the entry and exit of land vehicles into and from a protected areardquo119
Physical protection measures are also required to reduce the chance of a forced land
vehicle entry into a protected area120
The power to conduct searches upon entry to a protected area is also provided by the
112 SOR2000-209 113 Ibid s 8114 Ibid s 11(a)(i)115 Ibid s 9116 Ibid s 141117 Ibid s 17(1)118 Ibid s 171119 Ibid s 91(1)120 Ibid s 91(4)
49
Nuclear Security Regulations Signs must be posted that are visible to people about to
enter the protected area stating that they must allow a nuclear security officer (ldquoNSOrdquo) to
ldquosearch them and everything in their possession including any land vehicle for weapons
and explosive substancesrdquo121 In addition when leaving the protected area people must
allow NSOs to ldquosearch them and everything in their possession including any land
vehicle for Category I II or III nuclear materialrdquo122 People are not permitted to enter or
leave a protected area unless these searches are carried out123 The Nuclear Security
Regulations provide for the method of search including ldquoa hand-held scanner a walk-
through scanner or any similar devicerdquo124 In addition if an NSO determines it
necessary a frisk search can be carried out by a person of the same sex125
I have been informed that the area outside of but adjacent to the ldquoprotected areardquo is
referred to as the ldquocontrolled areardquo This area includes roadways and waterways within
the nuclear facilityrsquos property boundaries adjacent to or in close proximity to the nuclear
power plantrsquos protected area and may be generally accessible to the public
As a result of the September 11 2001 terrorist attacks the Nuclear Security Regulations
were amended to require that high security nuclear facilities maintain an on-site armed
Nuclear Response Force (ldquoNRFrdquo)126 The NRF is composed of specialized NSOs
Section 32 of the Nuclear Security Regulations requires the NRF to be capable of making
an effective intervention taking into account the threat
121 Ibid s 27(1)(a)122 Ibid s 27(1)(b)123 Ibid s 27(2)124 Ibid s 27(5)(a)125 Ibid s 27(5)(b)126 Ibid s 32
50
Members of the NRF are mandated by the Nuclear Security Regulations to be ldquotrained in
the use of firearms authorized to carry firearms in Canada and qualified to use themrdquo127
However to satisfy this requirement the NRF resorts to the PWPA since the federal
regulations do not authorize the NRF to carry firearms without a licence However
under s 2(1) of the PWPA NSOs are designated as ldquoguardsrdquo with the powers of a peace
officer most significantly to carry and use firearms without having to be licensed128
Such a designation also enables the OPG to acquire and dispose of firearms
In the consultations I had with the OPG and the CNSC they advised me that NSOs
receive training equivalent to Canadian police standards and that NRF officers receive
training equivalent to federal and provincial police tactical team requirements
Another aspect of the PWPA used to secure nuclear power plants relates to powers
exercised by NSOs in ldquocontrolled areasrdquo The federal regulations do not provide the
NSOs with any power to demand identification within this area However pursuant to
the PWPA as appointed ldquoguardsrdquo the NSOs have the power to demand identity
verification in the controlled area They also have the authority to arrest anyone who
obstructs NSOs in the performance of their duties under the PWPA
In addition to using the PWPA to secure the controlled areas I have been advised by the
OPG that NSOs use powers pursuant to the PWPA to secure areas within 100 metres of a
nuclear facilityrsquos property line immediately adjacent to the controlled area These powers
are exercised under the broad language of the PWPA regarding ldquoapproaches to public
127 Ibid s 1 (on-site nuclear response force definition)128 Section 11707 of the Criminal Code exempts peace officers from licensing requirements for possessing firearms and other prohibited and restricted weapons
51
worksrdquo This is an illustration of the problem with the vagueness of this language in the
legislation As these powers are exercised on public land they could be challenged as a
potential infringement on individual rights and freedoms However I have been advised
that there have been no such incidents to date The need to ensure the security of these
facilities must be taken into the balance
NSOs must be able to monitor and control access to the controlled areas and areas close
to a nuclear power plantrsquos property line This provides for a more secure perimeter
around these facilities They need authority to challenge individuals acting in a suspicious
manner or conducting surveillance of nuclear facilities The OPG has informed me that
areas outside a nuclear facilityrsquos property line immediately adjacent to the controlled
area are still close enough to take advantage of the short distance to conduct intelligence
using high-powered surveillance equipment These nuclear power plants are not located
on isolated islands and are therefore vulnerable Both the Pickering Nuclear Generating
Station and the Darlington Nuclear Generating Station operate within major urban areas
being 30 km and 60 km east of downtown Toronto respectively I am advised that
previous events such as ldquoThe Toronto 18rdquo129 have shown that those intent on targeting
vital infrastructure such as power generating facilities often use reconnaissance and
intelligence gathering as precursor tactics
Recommendation
If the PWPA is to be repealed it is imperative that those who secure our nuclear and
power generating facilities be given the requisite specific legislative powers to do so
129 See for example ldquoLast 2 Toronto 18 accused found guiltyrdquo CBC News (23 June 2010) online cbcca lthttpwwwcbccanewscanadatorontostory20100623toronto-18-verdicthtmlgt
52
The source for these powers should be set out in the federal Nuclear Security
Regulations However if this is not a desired option the Government of Ontario must
consider specific legislation setting out the specific powers required to properly secure
these facilities and the specific location in which these powers can be exercised Such
legislation should not be passed without proper notice consultation and legislative
debate
53
SECTION 6 CONCLUSION
The PWPA was enacted in 1939 to support the war effort At the time the protection of
Ontariorsquos hydroelectric facilities from sabotage was of particular concern Since then the
PWPA has been used to provide the legal foundation for the powers exercised by the
police in providing court security and even more recently by the OPG in securing
nuclear power facilities In June 2010 the PWPA was used to provide powers to secure
intergovernmental conferences The vagueness of the PWPA permits it to be used in
situations when it is arguably not necessary and potentially abusive In my view the
PWPA has been used for purposes beyond its original intent
The time for the PWPA seems to have passed If the Government of Ontario enacts as I
have suggested specific legislation to provide for courthouse security and power
generating infrastructure security it would appear that there is no longer a need for the
PWPA I am also mindful of the existence of counter-terrorism and emergencies
legislation to deal with these situations as they arise
ldquoIn determining the boundaries of police powers caution is required to ensure the proper
balance between preventing excessive intrusions on an individualrsquos liberty and privacy
and enabling the police to do what is reasonably necessary to perform their duties in
protecting the publicrdquo130 The overly broad and vague language of the PWPA does not
strike this required balance with individual rights and freedoms
The late Justice Jackson of the United States Supreme Court stated that every
emergency power once conferred ldquolies about like a loaded weapon ready for the hand of
130 R v Clayton [2007] 2 SCR 725 at 742
54
any authority that can bring forward a plausible claim of an urgent needrdquo131 The need to
protect the public must be balanced with the requirement to preserve fundamental rights
and freedoms
Yet at the same time ldquoCanadians are entitled to demand the best public order policing
possible from their governmentrdquo132 There is no question that we live in a different world
post 911 We live in difficult times with constant threats both domestically and from
abroad The police clearly need to be given adequate powers to carry out their duties
The police use their expertise on a daily basis to assess the powers they require In
instances when they take action that exceeds their powers their actions are examined by
various mandated bodies This process I believe results in the proper balance between
police powers and individual rights and freedoms Therefore any legislation that purports
to grant special police powers must be specific and direct and developed in consultation
with stakeholders and tested through thorough debate in our transparent democratic
system
131 Korematsu v United States 323 US 214 (1944)132 Supra note 26 p 8
55
SECTION 5 LEGAL ANALYSIS OF THE PUBLIC WORKS PROTECTION ACT
A Legal Analysis of the Legislation
Many stakeholders have questioned the constitutional validity of the PWPA and O Reg
23310 The Ontario Ombudsman seriously questioned whether O Reg 23310 could
pass ldquoconstitutional musterrdquo80 The CCLA suggested that the broad police powers
granted under the PWPA were inconsistent with the Charter81
To the same effect were comments made by Premier Dalton McGuinty who described
the PWPA as ldquoan archaic law that was used to undermine Torontoniansrsquo civil rights
during the G20rdquo82 He elaborated83
The issue is whether itrsquos appropriate given our present-day values and given an old law which I am confident doesnrsquot strike the balance that you and I would want today in terms of public safety and individual freedom of expressionhellipWhen you start talking about civil rights individual freedoms yoursquore talking about those things that in fact define us as a free and democratic societyhellipItrsquos something that is real and meaningful and important to all of us
The Terms of Reference for this Review do not require that I conduct a constitutional
analysis of the PWPA I have however been asked to consider areas for reform and if
appropriate make specific recommendations for amendment or repeal This does require
that I therefore consider whether the legislation may be vulnerable to constitutional
challenge
Section 2(b) of the Charter guarantees everyone the fundamental freedom of expression
The definition of ldquoexpressionrdquo has been interpreted broadly ldquoActivity is expressive if it
80 Supra note 32 at para 23381 Supra note 26 p 982 Robert Benzie and Rob Ferguson ldquoMcGuinty shifts focus to fixing G20 lawrdquo Toronto Star (10 December 2010) online thestarcom lthttpwwwthestarcomnewscanadaarticle905436--mcguinty-shifts-focus-to-fixing-g20-lawgt 83 Ibid
36
attempts to convey meaningrdquo84 While freedom of expression is not absolute there is
very little that is not considered expression However expression that advocates violence
is not protected under s 2(b)85
The Supreme Court of Canada in Committee for the Commonwealth of Canada v
Canada held that s 2(b) ldquodoes not encompass the right to use any and all government
property for purposes of disseminating onersquos views on public matters but I have no doubt
that it does include the right to use for that purpose streets and parks which are dedicated
to the use of the public subject no doubt to reasonable regulation to ensure their
continued use for the purposes to which they are dedicatedrdquo86 It seems clear that
protesting in public streets is a form of expression protected by s 2(b) Protesting at an
intergovernmental conference is clearly expressive in nature
In challenges alleging that a statute contravenes s 2(b) of the Charter a court would
examine whether the purpose or effect of a law contravenes section 2(b)87 There is no
reason to suggest that the purpose of the PWPA was to infringe the freedom of
expression The purpose of the PWPA is to protect important public infrastructures A
court would then have to consider whether the effect of the PWPA may have resulted in
an infringement of freedom of expression
O Reg 23310 defined significant portions of downtown Toronto as a ldquopublic workrdquo
Section 3(c) of the PWPA allows peace officers to refuse entry into public works which
therefore limits the areas in which protesters could express themselves By creating the
84 Irwin Toy Ltd v Queacutebec (Attorney General) [1989] 1 SCR 927 at 96885 Ibid at 97086 [1991] 1 SCR 139 at 165-16687 Peter Hogg Constitutional Law of Canada loose-leaf (consulted on 7 January 2011) 5th ed (Toronto Thomson Reuters Canada Limited 2007) at 43-6
37
relatively large security perimeter designated by the regulation individuals may allege
they were not permitted to communicate directly with those they were protesting against
Furthermore individuals could not communicate in public places such as public streets
where the right to freedom of expression has previously been found to exist88
Commissioner Ted Hughes completed an interim report following a public hearing into
the complaints regarding events that took place with respect to the Asia Pacific Economic
Cooperation (APEC) Conference in Vancouver British Columbia in November 1997
Commissioner Hughes recommended that generous opportunity should be afforded to
peaceful protesters to be seen in their protest activities by guests at the event89
Section 7 of the Charter provides that ldquoEveryone has the right to life liberty and security
of the person and the right not to be deprived thereof except in accordance with the
principles of fundamental justicerdquo The PWPA raises issues regarding the liberty and
security of the person in providing for warrantless searches and stopping for
identification Furthermore vague laws offend two fundamental values of our legal
system90 Firstly individuals are not provided with sufficient guidance as to what
behaviour a law prohibits Secondly those in charge of enforcing the law are not
provided with clear guidance as to how to enforce it A vague law can lead to inconsistent
and arbitrary enforcement91
88 Supra note 86 89 Canada Commission for Public Complaints Against the RCMP APEC ndash Commission Interim Report (31 July 2001) at s 3111 (Commissioner Ted Hughes QC) online Commission for Public Complaints Against the RCMP lthttpwwwcpc-cppgccaprrrepphrapecapec-31-engaspxgt90 Supra note 87 at 47-60 91 ldquoA vague provision does not provide an adequate basis for legal debate that is for reaching a conclusion as to its meaning by reasoned analysis applying legal criteria It does not sufficiently delineate any area of risk and thus can provide neither fair notice to the citizen nor a limitation of enforcement discretion Such
38
As described by Professor Hogg92
The requirement that any limit on rights be prescribed by law reflects two values that are basic to constitutionalism or the rule of law First in order to preclude arbitrary and discriminatory action by government officials all official action in derogation of rights must be authorized by law Secondly citizens must have reasonable opportunity to know what is prohibited so that they can act accordingly Both these values are satisfied by a law that fulfils two requirements (1) the law must be adequately accessible to the public and (2) the law must be formulated with sufficient precision to enable people to regulate their conduct by it and to provide guidance to those who apply the law
As I stated earlier the phrase ldquoany approach theretordquo contained in s 3(a) of the PWPA is
potentially vague No criteria are provided to assist in determining when one is on ldquoany
approach theretordquo A phrase such as ldquoany approach theretordquo is subject to many potential
interpretations It is arguable that this language does not provide reasonable guidance for
individuals to obey the law and for the law to be consistently enforced
Section 8 of the Charter provides that ldquoEveryone has the right to be secure against
unreasonable search or seizurerdquo A warrantless search or seizure is only reasonable if the
search was authorized by law the law itself is reasonable and the manner in which the
search carried out was reasonable93 The fact that no reasonable or probable suspicions
are needed to carry out a search pursuant to s 3(b) of the PWPA raises some issues The
only prerequisite to such a search is that the person or vehicle being subjected to a search
is entering or attempting to enter a public work
a provision is not intelligible to use the terminology of previous decisions of this Court and therefore it fails to give sufficient indications that could fuel a legal debaterdquo (R v Nova Scotia Pharmaceutical Society [1992] 2 SCR 606 at 639-640) 92 Supra note 87 at 38-1293 R v Nolet [2010] SCJ No 24 at para 21
39
Whether the PWPArsquos s 3(b) authority to undertake warrantless searches is ldquoreasonablerdquo
depends on the reasonableness of the impact on the subject of the search ldquoThe
individuals reasonable expectation of privacy must of course be balanced against the
public interest in effective law enforcementrdquo94 It is harder to justify a warrantless search
where the reasonable expectation of privacy is higher For example interference with
bodily integrity will raise the standard of reasonableness Conversely in situations where
people expect to have a lower level of privacy the standard to prove reasonableness is
lower
One rightfully has some expectation of privacy when in public but it does not rise to the
level of privacy that one expects in onersquos home The expectation of privacy further
decreases when one attempts to enter a ldquopublic workrdquo especially in the context of a
secured barrier to an intergovernmental conference
Section 9 of the Charter provides that ldquoEveryone has the right not to be arbitrarily
detained or imprisonedrdquo95 Under s 3(a) of the PWPA a person entering or attempting to
enter or approach a public work must provide his or her name and address and state the
purpose for which he or she desires to enter the public work In order for a guard or
peace officer to carry out this duty the guard or peace officer may ldquostoprdquo the person from
further approaching or entering the public work and the person is not permitted under the
statute to decide not to enter By so doing it is arguable the guard or peace officer has
assumed control over the movement of the individual by a demand or direction The
94 R v Rao [1984] OJ No 3180 at para 79 (CA)95 ldquoDetention under s 9hellipof the Charter refers to a suspension of the individualrsquos liberty interest by a significant physical or psychological restraint Psychological detention is established either where the individual has a legal obligation to comply with the restrictive request or demand or a reasonable person would conclude by reason of the state conduct that he or she had no choice but to complyrdquo (R v Grant [2009] SCJ No 32 at para 44)
40
PWPA provides for a significant legal consequence if the demand or direction is not
followed since ldquoEvery person who neglects or refuses to comply with a request or
direction made under this Act by a guard or peace officer and every person found upon a
public work or any approach thereto without lawful authority the proof whereof lies on
him or her is guilty of an offence and on conviction is liable to a fine of not more than
$500 or to imprisonment for a term of not more than two months or to bothrdquo96
Pursuant to s 3(b) of the PWPA a guard or peace officer may search any person entering
or attempting to enter a public work These searches would necessitate the detention of a
person If a guard or peace officer performs such a search he or she has taken control
over the movement of the person by a demand or direction The same serious legal
consequence results from failing to obey this demand or direction as that which results
from failing to obey the demand or direction pursuant to s 3(a) of the PWPA As a
result ldquodetentionsrdquo could occur pursuant to both s 3(a) and s 3(b) of the PWPA
The question that would need to be addressed in any challenge to the PWPA is whether
the detentions permitted by the PWPA are arbitrary in nature The use of the term ldquoany
approach theretordquo is vague and imprecise A person could be deemed to be on ldquoany
approach theretordquo a great distance from the entrance of a public work and their detention
might very well be arbitrary In addition the fact that the guards and peace officers
determine the boundaries of the ldquoapproachesrdquo which cannot be contested seems
arbitrary as well as who they chose to search
96 It should be noted that not all communications with state authorities and police officers will amount to a detention The question is whether a person may reasonably believe that he or she is free to refuse to comply
41
Section 11(d) of the Charter provides that ldquoAny person charged with an offence has the
right to be presumed innocent until proven guilty according to law in a fair and public
hearing by an independent and impartial tribunalrdquo This requires that the Crown have the
burden of proving the guilt of an individual charged with an offence97 Provisions that
place the burden on the accused to disprove on the balance of probabilities an essential
element of an offence raises s 11(d) concerns because convictions would be possible
even if reasonable doubt existed98 The presumption of innocence is not only infringed
upon by a requirement that an accused disprove an essential element of an offence but
also any requirement on an accused to prove a fact on the balance of probabilities to
avoid conviction
Section 5(1) of the PWPA states that ldquoEvery person who neglects or refuses to comply
with a request or direction made under this Act by a guard or peace officer and every
person found upon a public work or any approach thereto without lawful authority the
proof whereof lies on him or her is guilty of an offence and on conviction is liable to a
fine of not more than $500 or to imprisonment for a term of not more than two months or
to bothrdquo For the offence of being found upon a public work or on any approach to a
public work without lawful authority the burden of proof has been ldquoshiftedrdquo from the
Crown to the accused to prove lawful authority
As the foregoing analysis reveals there are certainly many concerns that arise when one
places the PWPA under the lens of the Charter However the rights and freedoms
provided by the Charter are not absolute They are ldquosubject only to such reasonable
97 R v Oakes [1986] 1 SCR 10398 Ibid at 132
42
limits prescribed by law as can be demonstrably justified in a free and democratic
societyrdquo99
In assessing whether a law which infringes the Charter is saved by s 1 a court examines
both the object of the law and the measures taken to achieve that objective A lawrsquos
objective achieves the status of being sufficiently important to justify overriding a
Charter right only when it is consistent with the values of a free and democratic society
The objective must relate to pressing and substantial concerns and not concerns that are
trivial and must be focussed on ldquothe realization of collective goals of fundamental
importancerdquo100 The measures adopted must be ldquorationally connectedrdquo to the objective of
the law101 The measures ldquoshould impair lsquoas little as possiblersquo the right or freedom in
questionrdquo102 Furthermore there must be ldquoa proportionality between the effects of the
measures which are responsible for limiting the Charter right or freedom and the
objective which has been identified as of lsquosufficient importancersquordquo103
An issue that may affect whether the potential limitation on rights and freedoms of the
PWPA and O Reg 23310 were ldquoprescribed by lawrdquo is whether the regulation was
adequately accessible to the public The Ontario Ombudsman the CCLA and the Ontario
Bar Association (ldquoOBArdquo) all noted a lack of notice regarding O Reg 23310 and its
effects prior to and during the G20 While the text of the regulation was available prior
99 Charter s 1 The Superior Court of Quebec decision of Tremblay v Queacutebec (Attorney General) [2001] JQ No 1504 (CS) involved an interim injunction brought by an applicant who was denied entry into the secured perimeter during the 2001 Summit of the Americas in Queacutebec City The applicant sought an injunction to either eliminate the security barrier or to be given a pass to let him within the secured perimeter Even though the Court held that the erection of the security zone violated the applicantrsquos right to freedom of expression and peaceful assembly The court held that the infringement was ldquodemonstrably justified in a free and democratic societyrdquo100 Supra note 97 at 136101 Ibid at 139102 Ibid103 Ibid
43
to the G20 it was only available on a website not frequently accessed by the public
Since O Reg 23310 was not published in The Ontario Gazette until after it was
revoked it may be that the regulation was not adequately accessible to the public
Reverse onus offences have been found to be ldquorationally connectedrdquo when there is plainly
a rational connection between the proven fact and the fact to be presumed Reverse
onuses have also been upheld when the burden placed on the Crown would be virtually
impossible to meet (such as proving sanity)104 Even if the accused only has the burden
of disproving the fact that heshe did not have lawful authority to be in a public work or
on an approach thereto there may not be a rational connection between the proven fact
and the fact to be presumed
The history of threats and violence at previous intergovernmental conferences
demonstrated that the protection of G20 participants was a pressing and substantial
concern However given the broadness of the PWPA every exercise of it raises the
potential for Charter scrutiny
Recommendation
Given the public policy considerations I have raised regarding the PWPA and Charter
concerns that could arise I recommend that the PWPA be repealed after the Province has
considered potential policy and security gaps as a result of its repeal
B Other uses of the Public Works Protection Act
It appears from my consultations with stakeholder groups that if the PWPA is repealed
104 R v Chaulk [1990] 3 SCR 1303 at 1340
44
there are two areas which may require legislation to provide specific peace officer
powers These two areas are court security and the protection of nuclear power facilities
and other power generating infrastructures
1 Court Security
During my decade as Ontariorsquos Attorney General (1975 to 1985) there were three
murders in provincial courthouses as well as many threats to members of courthouse staff
and others As violent acts in courthouses can be anticipated courtroom security is often
required
Individuals are compelled to go to court for a variety of reasons such as appearing as an
accused as a witness or for jury duty To provide protection to those who work there or
are compelled to attend an adequate level of court security may require a search without
warrant of each and every individual who seeks to enter a courthouse It is not reasonable
to require prior judicial authorization for each search that takes place
The courts have considered the constitutionality of these provisions of the PWPA in
conjunction with section 137 of the Ontario Police Services Act in the context of court
security
Section 137 of the Ontario Police Services Act imposes a responsibility on municipal
police services boards to secure the premises where court proceedings are conducted and
includes
1 Ensuring the security of judges and of persons taking part in or attending proceedings
45
2 During the hours when judges and members of the public are normally present ensuring the security of the premises
3 Ensuring the secure custody of persons in custody who are on or about the premises including persons taken into custody at proceedings
4 Determining appropriate levels of security for the purposes of paragraphs 1 2 and 3
In R v Campanella105 Ms Campanella was attending the John Sopinka Courthouse in
Hamilton At the courthouse there were signs posted stating that those who entered
would be searched for weapons When Ms Campanellarsquos bag was searched marijuana
was found and she was charged with the possession of marijuana She argued that her s
8 Charter protection against unreasonable search and seizure had been violated and the
marijuana discovered during the search should therefore be excluded as evidence The
trial judge and the summary convictions appeal court rejected the section 8 Charter
argument and the appellant appealed to the Ontario Court of Appeal
The Ontario Court of Appeal agreed that ldquogiven the importance of the government
objective and the context in which these searches take place it is reasonable to authorize
warrantless searches of those entering courthouse facilitiesrdquo106 The Court stated ldquothe
only effective way to diminish the risk in a large courthouse is to subject everyone
without prior security clearance to some kind of inspection I can see no other feasible
means of achieving the aimrdquo107
The Court also pointed out the concern relating to the erosion of the benefits and
105 [2002] OJ No 5104 (SCJ) affrsquod [2005] OJ No 1345 (CA) [ldquoCampanellardquo]106 R v Campanella [2005] OJ No 1345 at para 17 (CA)107 Ibid at para 19
46
protections conferred by s 8 of the Charter108
I am sensitive to the concern that we should not erode the benefits and protections of s 8 by gradually sanctioning ever-greater intrusions into privacy because of unfounded fears We should not lightly accept that searches in public places are justified solely because people have become used to them and expect them However the record in this case establishes the justification for the kinds of searches carried out in this case
Ultimately the appeal was dismissed and s 137 of the Police Services Act and s 3(b) of
the PWPA) were held to comply with s 8 of the Charter109
In its consultations with me the OBA similarly stated that the existing nature of court
security is necessary and is generally ldquowell toleratedrdquo At the same time however it
submits that the security regime should not be ldquoshoehornedrdquo into the PWPA regime and
that it would be preferable to provide a legislative framework tailored for the specific
security requirements While the PWPA has been relied upon as support for the exercise
of powers by the police in providing court security the OBA submits that the PWPArsquos
ldquosingle security schemerdquo which declares something a ldquopublic workrdquo is an ldquoawkward
blunt instrument in a world where more specialized tools are necessaryrdquo When
warrantless searches are being done on a routine basis it is advisable to have specific
legislation providing peace officers with such power
Recommendation
Court security legislation is currently in place in many jurisdictions across Canada and
contain provisions that permit warrantless searches of persons wanting to access a
108 Ibid at para 25109 The Court in R v SS [2005] OJ No 5002 (SCJ) agreed with the findings and rationale of the Court of Appeal in Campanella
47
courthouse The constitutional validity of such legislation in Manitoba was upheld by that
provincersquos highest court110
Given the ongoing need for warrantless searches at courthouses the Province of Ontario
should consider specific court security legislation in Ontario to support the security
measures in our courthouses if the PWPA is to be repealed taking into consideration the
responsibilities of the municipal police services boards provided in s 137 of the Police
Services Act This legislation should only be passed after proper notice consultation and
legislative debate
2 Power Generating Infrastructures
It is clear from the submissions that I received from representatives of OPG and the
Canadian Nuclear Safety Commission (ldquoCNSCrdquo) that the PWPA currently plays a role in
providing security officers with the powers to secure power generating infrastructures
including the ability to carry firearms and the ability to stop and require identification
from those in proximity to those nuclear plants
Security is of the utmost importance in protecting a nuclear power plant Members of the
public do not need to access a nuclear or similar power facility unless employed at the
facility or carrying out work for the facility111
The security of areas within nuclear power plants is governed by the Nuclear Security
110 R v Lindsay [2004] MJ No 380 (CA) 111 Though the discussion focuses on nuclear power plants I have been informed that other power generating infrastructures use the PWPA to designate their security officers as guards As a result if the PWPA is repealed it will be necessary to broaden the consultations in relation to these other power generating infrastructures
48
Regulations112 Every nuclear power plant must be located within a ldquoprotected areardquo113
This protected area is the area within a fenced perimeter which is alarmed and
continually patrolled This area must be equipped with devices that employ two
independent systems to detect intrusion into the area114 The Nuclear Security
Regulations also provide detailed specifications for the barrier which must enclose the
protected area115 In addition licensees must ldquoidentify all vital areas and implement
physical protection measures ndash including access control and measures designed to delay
unauthorized accessrdquo116
The Nuclear Security Regulations also provide detailed provisions regarding entry into
protected areas No person can ldquoenter a protected area without physical proof of the
recorded authorization of the licenseerdquo117 Further to this on entry into a protected area
ldquothat personrsquos identity shall be verified by two separate personnel identity verification
systems one of which is an access card reader and the other of which is a biometric
personnel identity verification devicerdquo118 Licensees must also ldquoensure that vehicle
portals are used for the entry and exit of land vehicles into and from a protected areardquo119
Physical protection measures are also required to reduce the chance of a forced land
vehicle entry into a protected area120
The power to conduct searches upon entry to a protected area is also provided by the
112 SOR2000-209 113 Ibid s 8114 Ibid s 11(a)(i)115 Ibid s 9116 Ibid s 141117 Ibid s 17(1)118 Ibid s 171119 Ibid s 91(1)120 Ibid s 91(4)
49
Nuclear Security Regulations Signs must be posted that are visible to people about to
enter the protected area stating that they must allow a nuclear security officer (ldquoNSOrdquo) to
ldquosearch them and everything in their possession including any land vehicle for weapons
and explosive substancesrdquo121 In addition when leaving the protected area people must
allow NSOs to ldquosearch them and everything in their possession including any land
vehicle for Category I II or III nuclear materialrdquo122 People are not permitted to enter or
leave a protected area unless these searches are carried out123 The Nuclear Security
Regulations provide for the method of search including ldquoa hand-held scanner a walk-
through scanner or any similar devicerdquo124 In addition if an NSO determines it
necessary a frisk search can be carried out by a person of the same sex125
I have been informed that the area outside of but adjacent to the ldquoprotected areardquo is
referred to as the ldquocontrolled areardquo This area includes roadways and waterways within
the nuclear facilityrsquos property boundaries adjacent to or in close proximity to the nuclear
power plantrsquos protected area and may be generally accessible to the public
As a result of the September 11 2001 terrorist attacks the Nuclear Security Regulations
were amended to require that high security nuclear facilities maintain an on-site armed
Nuclear Response Force (ldquoNRFrdquo)126 The NRF is composed of specialized NSOs
Section 32 of the Nuclear Security Regulations requires the NRF to be capable of making
an effective intervention taking into account the threat
121 Ibid s 27(1)(a)122 Ibid s 27(1)(b)123 Ibid s 27(2)124 Ibid s 27(5)(a)125 Ibid s 27(5)(b)126 Ibid s 32
50
Members of the NRF are mandated by the Nuclear Security Regulations to be ldquotrained in
the use of firearms authorized to carry firearms in Canada and qualified to use themrdquo127
However to satisfy this requirement the NRF resorts to the PWPA since the federal
regulations do not authorize the NRF to carry firearms without a licence However
under s 2(1) of the PWPA NSOs are designated as ldquoguardsrdquo with the powers of a peace
officer most significantly to carry and use firearms without having to be licensed128
Such a designation also enables the OPG to acquire and dispose of firearms
In the consultations I had with the OPG and the CNSC they advised me that NSOs
receive training equivalent to Canadian police standards and that NRF officers receive
training equivalent to federal and provincial police tactical team requirements
Another aspect of the PWPA used to secure nuclear power plants relates to powers
exercised by NSOs in ldquocontrolled areasrdquo The federal regulations do not provide the
NSOs with any power to demand identification within this area However pursuant to
the PWPA as appointed ldquoguardsrdquo the NSOs have the power to demand identity
verification in the controlled area They also have the authority to arrest anyone who
obstructs NSOs in the performance of their duties under the PWPA
In addition to using the PWPA to secure the controlled areas I have been advised by the
OPG that NSOs use powers pursuant to the PWPA to secure areas within 100 metres of a
nuclear facilityrsquos property line immediately adjacent to the controlled area These powers
are exercised under the broad language of the PWPA regarding ldquoapproaches to public
127 Ibid s 1 (on-site nuclear response force definition)128 Section 11707 of the Criminal Code exempts peace officers from licensing requirements for possessing firearms and other prohibited and restricted weapons
51
worksrdquo This is an illustration of the problem with the vagueness of this language in the
legislation As these powers are exercised on public land they could be challenged as a
potential infringement on individual rights and freedoms However I have been advised
that there have been no such incidents to date The need to ensure the security of these
facilities must be taken into the balance
NSOs must be able to monitor and control access to the controlled areas and areas close
to a nuclear power plantrsquos property line This provides for a more secure perimeter
around these facilities They need authority to challenge individuals acting in a suspicious
manner or conducting surveillance of nuclear facilities The OPG has informed me that
areas outside a nuclear facilityrsquos property line immediately adjacent to the controlled
area are still close enough to take advantage of the short distance to conduct intelligence
using high-powered surveillance equipment These nuclear power plants are not located
on isolated islands and are therefore vulnerable Both the Pickering Nuclear Generating
Station and the Darlington Nuclear Generating Station operate within major urban areas
being 30 km and 60 km east of downtown Toronto respectively I am advised that
previous events such as ldquoThe Toronto 18rdquo129 have shown that those intent on targeting
vital infrastructure such as power generating facilities often use reconnaissance and
intelligence gathering as precursor tactics
Recommendation
If the PWPA is to be repealed it is imperative that those who secure our nuclear and
power generating facilities be given the requisite specific legislative powers to do so
129 See for example ldquoLast 2 Toronto 18 accused found guiltyrdquo CBC News (23 June 2010) online cbcca lthttpwwwcbccanewscanadatorontostory20100623toronto-18-verdicthtmlgt
52
The source for these powers should be set out in the federal Nuclear Security
Regulations However if this is not a desired option the Government of Ontario must
consider specific legislation setting out the specific powers required to properly secure
these facilities and the specific location in which these powers can be exercised Such
legislation should not be passed without proper notice consultation and legislative
debate
53
SECTION 6 CONCLUSION
The PWPA was enacted in 1939 to support the war effort At the time the protection of
Ontariorsquos hydroelectric facilities from sabotage was of particular concern Since then the
PWPA has been used to provide the legal foundation for the powers exercised by the
police in providing court security and even more recently by the OPG in securing
nuclear power facilities In June 2010 the PWPA was used to provide powers to secure
intergovernmental conferences The vagueness of the PWPA permits it to be used in
situations when it is arguably not necessary and potentially abusive In my view the
PWPA has been used for purposes beyond its original intent
The time for the PWPA seems to have passed If the Government of Ontario enacts as I
have suggested specific legislation to provide for courthouse security and power
generating infrastructure security it would appear that there is no longer a need for the
PWPA I am also mindful of the existence of counter-terrorism and emergencies
legislation to deal with these situations as they arise
ldquoIn determining the boundaries of police powers caution is required to ensure the proper
balance between preventing excessive intrusions on an individualrsquos liberty and privacy
and enabling the police to do what is reasonably necessary to perform their duties in
protecting the publicrdquo130 The overly broad and vague language of the PWPA does not
strike this required balance with individual rights and freedoms
The late Justice Jackson of the United States Supreme Court stated that every
emergency power once conferred ldquolies about like a loaded weapon ready for the hand of
130 R v Clayton [2007] 2 SCR 725 at 742
54
any authority that can bring forward a plausible claim of an urgent needrdquo131 The need to
protect the public must be balanced with the requirement to preserve fundamental rights
and freedoms
Yet at the same time ldquoCanadians are entitled to demand the best public order policing
possible from their governmentrdquo132 There is no question that we live in a different world
post 911 We live in difficult times with constant threats both domestically and from
abroad The police clearly need to be given adequate powers to carry out their duties
The police use their expertise on a daily basis to assess the powers they require In
instances when they take action that exceeds their powers their actions are examined by
various mandated bodies This process I believe results in the proper balance between
police powers and individual rights and freedoms Therefore any legislation that purports
to grant special police powers must be specific and direct and developed in consultation
with stakeholders and tested through thorough debate in our transparent democratic
system
131 Korematsu v United States 323 US 214 (1944)132 Supra note 26 p 8
55
attempts to convey meaningrdquo84 While freedom of expression is not absolute there is
very little that is not considered expression However expression that advocates violence
is not protected under s 2(b)85
The Supreme Court of Canada in Committee for the Commonwealth of Canada v
Canada held that s 2(b) ldquodoes not encompass the right to use any and all government
property for purposes of disseminating onersquos views on public matters but I have no doubt
that it does include the right to use for that purpose streets and parks which are dedicated
to the use of the public subject no doubt to reasonable regulation to ensure their
continued use for the purposes to which they are dedicatedrdquo86 It seems clear that
protesting in public streets is a form of expression protected by s 2(b) Protesting at an
intergovernmental conference is clearly expressive in nature
In challenges alleging that a statute contravenes s 2(b) of the Charter a court would
examine whether the purpose or effect of a law contravenes section 2(b)87 There is no
reason to suggest that the purpose of the PWPA was to infringe the freedom of
expression The purpose of the PWPA is to protect important public infrastructures A
court would then have to consider whether the effect of the PWPA may have resulted in
an infringement of freedom of expression
O Reg 23310 defined significant portions of downtown Toronto as a ldquopublic workrdquo
Section 3(c) of the PWPA allows peace officers to refuse entry into public works which
therefore limits the areas in which protesters could express themselves By creating the
84 Irwin Toy Ltd v Queacutebec (Attorney General) [1989] 1 SCR 927 at 96885 Ibid at 97086 [1991] 1 SCR 139 at 165-16687 Peter Hogg Constitutional Law of Canada loose-leaf (consulted on 7 January 2011) 5th ed (Toronto Thomson Reuters Canada Limited 2007) at 43-6
37
relatively large security perimeter designated by the regulation individuals may allege
they were not permitted to communicate directly with those they were protesting against
Furthermore individuals could not communicate in public places such as public streets
where the right to freedom of expression has previously been found to exist88
Commissioner Ted Hughes completed an interim report following a public hearing into
the complaints regarding events that took place with respect to the Asia Pacific Economic
Cooperation (APEC) Conference in Vancouver British Columbia in November 1997
Commissioner Hughes recommended that generous opportunity should be afforded to
peaceful protesters to be seen in their protest activities by guests at the event89
Section 7 of the Charter provides that ldquoEveryone has the right to life liberty and security
of the person and the right not to be deprived thereof except in accordance with the
principles of fundamental justicerdquo The PWPA raises issues regarding the liberty and
security of the person in providing for warrantless searches and stopping for
identification Furthermore vague laws offend two fundamental values of our legal
system90 Firstly individuals are not provided with sufficient guidance as to what
behaviour a law prohibits Secondly those in charge of enforcing the law are not
provided with clear guidance as to how to enforce it A vague law can lead to inconsistent
and arbitrary enforcement91
88 Supra note 86 89 Canada Commission for Public Complaints Against the RCMP APEC ndash Commission Interim Report (31 July 2001) at s 3111 (Commissioner Ted Hughes QC) online Commission for Public Complaints Against the RCMP lthttpwwwcpc-cppgccaprrrepphrapecapec-31-engaspxgt90 Supra note 87 at 47-60 91 ldquoA vague provision does not provide an adequate basis for legal debate that is for reaching a conclusion as to its meaning by reasoned analysis applying legal criteria It does not sufficiently delineate any area of risk and thus can provide neither fair notice to the citizen nor a limitation of enforcement discretion Such
38
As described by Professor Hogg92
The requirement that any limit on rights be prescribed by law reflects two values that are basic to constitutionalism or the rule of law First in order to preclude arbitrary and discriminatory action by government officials all official action in derogation of rights must be authorized by law Secondly citizens must have reasonable opportunity to know what is prohibited so that they can act accordingly Both these values are satisfied by a law that fulfils two requirements (1) the law must be adequately accessible to the public and (2) the law must be formulated with sufficient precision to enable people to regulate their conduct by it and to provide guidance to those who apply the law
As I stated earlier the phrase ldquoany approach theretordquo contained in s 3(a) of the PWPA is
potentially vague No criteria are provided to assist in determining when one is on ldquoany
approach theretordquo A phrase such as ldquoany approach theretordquo is subject to many potential
interpretations It is arguable that this language does not provide reasonable guidance for
individuals to obey the law and for the law to be consistently enforced
Section 8 of the Charter provides that ldquoEveryone has the right to be secure against
unreasonable search or seizurerdquo A warrantless search or seizure is only reasonable if the
search was authorized by law the law itself is reasonable and the manner in which the
search carried out was reasonable93 The fact that no reasonable or probable suspicions
are needed to carry out a search pursuant to s 3(b) of the PWPA raises some issues The
only prerequisite to such a search is that the person or vehicle being subjected to a search
is entering or attempting to enter a public work
a provision is not intelligible to use the terminology of previous decisions of this Court and therefore it fails to give sufficient indications that could fuel a legal debaterdquo (R v Nova Scotia Pharmaceutical Society [1992] 2 SCR 606 at 639-640) 92 Supra note 87 at 38-1293 R v Nolet [2010] SCJ No 24 at para 21
39
Whether the PWPArsquos s 3(b) authority to undertake warrantless searches is ldquoreasonablerdquo
depends on the reasonableness of the impact on the subject of the search ldquoThe
individuals reasonable expectation of privacy must of course be balanced against the
public interest in effective law enforcementrdquo94 It is harder to justify a warrantless search
where the reasonable expectation of privacy is higher For example interference with
bodily integrity will raise the standard of reasonableness Conversely in situations where
people expect to have a lower level of privacy the standard to prove reasonableness is
lower
One rightfully has some expectation of privacy when in public but it does not rise to the
level of privacy that one expects in onersquos home The expectation of privacy further
decreases when one attempts to enter a ldquopublic workrdquo especially in the context of a
secured barrier to an intergovernmental conference
Section 9 of the Charter provides that ldquoEveryone has the right not to be arbitrarily
detained or imprisonedrdquo95 Under s 3(a) of the PWPA a person entering or attempting to
enter or approach a public work must provide his or her name and address and state the
purpose for which he or she desires to enter the public work In order for a guard or
peace officer to carry out this duty the guard or peace officer may ldquostoprdquo the person from
further approaching or entering the public work and the person is not permitted under the
statute to decide not to enter By so doing it is arguable the guard or peace officer has
assumed control over the movement of the individual by a demand or direction The
94 R v Rao [1984] OJ No 3180 at para 79 (CA)95 ldquoDetention under s 9hellipof the Charter refers to a suspension of the individualrsquos liberty interest by a significant physical or psychological restraint Psychological detention is established either where the individual has a legal obligation to comply with the restrictive request or demand or a reasonable person would conclude by reason of the state conduct that he or she had no choice but to complyrdquo (R v Grant [2009] SCJ No 32 at para 44)
40
PWPA provides for a significant legal consequence if the demand or direction is not
followed since ldquoEvery person who neglects or refuses to comply with a request or
direction made under this Act by a guard or peace officer and every person found upon a
public work or any approach thereto without lawful authority the proof whereof lies on
him or her is guilty of an offence and on conviction is liable to a fine of not more than
$500 or to imprisonment for a term of not more than two months or to bothrdquo96
Pursuant to s 3(b) of the PWPA a guard or peace officer may search any person entering
or attempting to enter a public work These searches would necessitate the detention of a
person If a guard or peace officer performs such a search he or she has taken control
over the movement of the person by a demand or direction The same serious legal
consequence results from failing to obey this demand or direction as that which results
from failing to obey the demand or direction pursuant to s 3(a) of the PWPA As a
result ldquodetentionsrdquo could occur pursuant to both s 3(a) and s 3(b) of the PWPA
The question that would need to be addressed in any challenge to the PWPA is whether
the detentions permitted by the PWPA are arbitrary in nature The use of the term ldquoany
approach theretordquo is vague and imprecise A person could be deemed to be on ldquoany
approach theretordquo a great distance from the entrance of a public work and their detention
might very well be arbitrary In addition the fact that the guards and peace officers
determine the boundaries of the ldquoapproachesrdquo which cannot be contested seems
arbitrary as well as who they chose to search
96 It should be noted that not all communications with state authorities and police officers will amount to a detention The question is whether a person may reasonably believe that he or she is free to refuse to comply
41
Section 11(d) of the Charter provides that ldquoAny person charged with an offence has the
right to be presumed innocent until proven guilty according to law in a fair and public
hearing by an independent and impartial tribunalrdquo This requires that the Crown have the
burden of proving the guilt of an individual charged with an offence97 Provisions that
place the burden on the accused to disprove on the balance of probabilities an essential
element of an offence raises s 11(d) concerns because convictions would be possible
even if reasonable doubt existed98 The presumption of innocence is not only infringed
upon by a requirement that an accused disprove an essential element of an offence but
also any requirement on an accused to prove a fact on the balance of probabilities to
avoid conviction
Section 5(1) of the PWPA states that ldquoEvery person who neglects or refuses to comply
with a request or direction made under this Act by a guard or peace officer and every
person found upon a public work or any approach thereto without lawful authority the
proof whereof lies on him or her is guilty of an offence and on conviction is liable to a
fine of not more than $500 or to imprisonment for a term of not more than two months or
to bothrdquo For the offence of being found upon a public work or on any approach to a
public work without lawful authority the burden of proof has been ldquoshiftedrdquo from the
Crown to the accused to prove lawful authority
As the foregoing analysis reveals there are certainly many concerns that arise when one
places the PWPA under the lens of the Charter However the rights and freedoms
provided by the Charter are not absolute They are ldquosubject only to such reasonable
97 R v Oakes [1986] 1 SCR 10398 Ibid at 132
42
limits prescribed by law as can be demonstrably justified in a free and democratic
societyrdquo99
In assessing whether a law which infringes the Charter is saved by s 1 a court examines
both the object of the law and the measures taken to achieve that objective A lawrsquos
objective achieves the status of being sufficiently important to justify overriding a
Charter right only when it is consistent with the values of a free and democratic society
The objective must relate to pressing and substantial concerns and not concerns that are
trivial and must be focussed on ldquothe realization of collective goals of fundamental
importancerdquo100 The measures adopted must be ldquorationally connectedrdquo to the objective of
the law101 The measures ldquoshould impair lsquoas little as possiblersquo the right or freedom in
questionrdquo102 Furthermore there must be ldquoa proportionality between the effects of the
measures which are responsible for limiting the Charter right or freedom and the
objective which has been identified as of lsquosufficient importancersquordquo103
An issue that may affect whether the potential limitation on rights and freedoms of the
PWPA and O Reg 23310 were ldquoprescribed by lawrdquo is whether the regulation was
adequately accessible to the public The Ontario Ombudsman the CCLA and the Ontario
Bar Association (ldquoOBArdquo) all noted a lack of notice regarding O Reg 23310 and its
effects prior to and during the G20 While the text of the regulation was available prior
99 Charter s 1 The Superior Court of Quebec decision of Tremblay v Queacutebec (Attorney General) [2001] JQ No 1504 (CS) involved an interim injunction brought by an applicant who was denied entry into the secured perimeter during the 2001 Summit of the Americas in Queacutebec City The applicant sought an injunction to either eliminate the security barrier or to be given a pass to let him within the secured perimeter Even though the Court held that the erection of the security zone violated the applicantrsquos right to freedom of expression and peaceful assembly The court held that the infringement was ldquodemonstrably justified in a free and democratic societyrdquo100 Supra note 97 at 136101 Ibid at 139102 Ibid103 Ibid
43
to the G20 it was only available on a website not frequently accessed by the public
Since O Reg 23310 was not published in The Ontario Gazette until after it was
revoked it may be that the regulation was not adequately accessible to the public
Reverse onus offences have been found to be ldquorationally connectedrdquo when there is plainly
a rational connection between the proven fact and the fact to be presumed Reverse
onuses have also been upheld when the burden placed on the Crown would be virtually
impossible to meet (such as proving sanity)104 Even if the accused only has the burden
of disproving the fact that heshe did not have lawful authority to be in a public work or
on an approach thereto there may not be a rational connection between the proven fact
and the fact to be presumed
The history of threats and violence at previous intergovernmental conferences
demonstrated that the protection of G20 participants was a pressing and substantial
concern However given the broadness of the PWPA every exercise of it raises the
potential for Charter scrutiny
Recommendation
Given the public policy considerations I have raised regarding the PWPA and Charter
concerns that could arise I recommend that the PWPA be repealed after the Province has
considered potential policy and security gaps as a result of its repeal
B Other uses of the Public Works Protection Act
It appears from my consultations with stakeholder groups that if the PWPA is repealed
104 R v Chaulk [1990] 3 SCR 1303 at 1340
44
there are two areas which may require legislation to provide specific peace officer
powers These two areas are court security and the protection of nuclear power facilities
and other power generating infrastructures
1 Court Security
During my decade as Ontariorsquos Attorney General (1975 to 1985) there were three
murders in provincial courthouses as well as many threats to members of courthouse staff
and others As violent acts in courthouses can be anticipated courtroom security is often
required
Individuals are compelled to go to court for a variety of reasons such as appearing as an
accused as a witness or for jury duty To provide protection to those who work there or
are compelled to attend an adequate level of court security may require a search without
warrant of each and every individual who seeks to enter a courthouse It is not reasonable
to require prior judicial authorization for each search that takes place
The courts have considered the constitutionality of these provisions of the PWPA in
conjunction with section 137 of the Ontario Police Services Act in the context of court
security
Section 137 of the Ontario Police Services Act imposes a responsibility on municipal
police services boards to secure the premises where court proceedings are conducted and
includes
1 Ensuring the security of judges and of persons taking part in or attending proceedings
45
2 During the hours when judges and members of the public are normally present ensuring the security of the premises
3 Ensuring the secure custody of persons in custody who are on or about the premises including persons taken into custody at proceedings
4 Determining appropriate levels of security for the purposes of paragraphs 1 2 and 3
In R v Campanella105 Ms Campanella was attending the John Sopinka Courthouse in
Hamilton At the courthouse there were signs posted stating that those who entered
would be searched for weapons When Ms Campanellarsquos bag was searched marijuana
was found and she was charged with the possession of marijuana She argued that her s
8 Charter protection against unreasonable search and seizure had been violated and the
marijuana discovered during the search should therefore be excluded as evidence The
trial judge and the summary convictions appeal court rejected the section 8 Charter
argument and the appellant appealed to the Ontario Court of Appeal
The Ontario Court of Appeal agreed that ldquogiven the importance of the government
objective and the context in which these searches take place it is reasonable to authorize
warrantless searches of those entering courthouse facilitiesrdquo106 The Court stated ldquothe
only effective way to diminish the risk in a large courthouse is to subject everyone
without prior security clearance to some kind of inspection I can see no other feasible
means of achieving the aimrdquo107
The Court also pointed out the concern relating to the erosion of the benefits and
105 [2002] OJ No 5104 (SCJ) affrsquod [2005] OJ No 1345 (CA) [ldquoCampanellardquo]106 R v Campanella [2005] OJ No 1345 at para 17 (CA)107 Ibid at para 19
46
protections conferred by s 8 of the Charter108
I am sensitive to the concern that we should not erode the benefits and protections of s 8 by gradually sanctioning ever-greater intrusions into privacy because of unfounded fears We should not lightly accept that searches in public places are justified solely because people have become used to them and expect them However the record in this case establishes the justification for the kinds of searches carried out in this case
Ultimately the appeal was dismissed and s 137 of the Police Services Act and s 3(b) of
the PWPA) were held to comply with s 8 of the Charter109
In its consultations with me the OBA similarly stated that the existing nature of court
security is necessary and is generally ldquowell toleratedrdquo At the same time however it
submits that the security regime should not be ldquoshoehornedrdquo into the PWPA regime and
that it would be preferable to provide a legislative framework tailored for the specific
security requirements While the PWPA has been relied upon as support for the exercise
of powers by the police in providing court security the OBA submits that the PWPArsquos
ldquosingle security schemerdquo which declares something a ldquopublic workrdquo is an ldquoawkward
blunt instrument in a world where more specialized tools are necessaryrdquo When
warrantless searches are being done on a routine basis it is advisable to have specific
legislation providing peace officers with such power
Recommendation
Court security legislation is currently in place in many jurisdictions across Canada and
contain provisions that permit warrantless searches of persons wanting to access a
108 Ibid at para 25109 The Court in R v SS [2005] OJ No 5002 (SCJ) agreed with the findings and rationale of the Court of Appeal in Campanella
47
courthouse The constitutional validity of such legislation in Manitoba was upheld by that
provincersquos highest court110
Given the ongoing need for warrantless searches at courthouses the Province of Ontario
should consider specific court security legislation in Ontario to support the security
measures in our courthouses if the PWPA is to be repealed taking into consideration the
responsibilities of the municipal police services boards provided in s 137 of the Police
Services Act This legislation should only be passed after proper notice consultation and
legislative debate
2 Power Generating Infrastructures
It is clear from the submissions that I received from representatives of OPG and the
Canadian Nuclear Safety Commission (ldquoCNSCrdquo) that the PWPA currently plays a role in
providing security officers with the powers to secure power generating infrastructures
including the ability to carry firearms and the ability to stop and require identification
from those in proximity to those nuclear plants
Security is of the utmost importance in protecting a nuclear power plant Members of the
public do not need to access a nuclear or similar power facility unless employed at the
facility or carrying out work for the facility111
The security of areas within nuclear power plants is governed by the Nuclear Security
110 R v Lindsay [2004] MJ No 380 (CA) 111 Though the discussion focuses on nuclear power plants I have been informed that other power generating infrastructures use the PWPA to designate their security officers as guards As a result if the PWPA is repealed it will be necessary to broaden the consultations in relation to these other power generating infrastructures
48
Regulations112 Every nuclear power plant must be located within a ldquoprotected areardquo113
This protected area is the area within a fenced perimeter which is alarmed and
continually patrolled This area must be equipped with devices that employ two
independent systems to detect intrusion into the area114 The Nuclear Security
Regulations also provide detailed specifications for the barrier which must enclose the
protected area115 In addition licensees must ldquoidentify all vital areas and implement
physical protection measures ndash including access control and measures designed to delay
unauthorized accessrdquo116
The Nuclear Security Regulations also provide detailed provisions regarding entry into
protected areas No person can ldquoenter a protected area without physical proof of the
recorded authorization of the licenseerdquo117 Further to this on entry into a protected area
ldquothat personrsquos identity shall be verified by two separate personnel identity verification
systems one of which is an access card reader and the other of which is a biometric
personnel identity verification devicerdquo118 Licensees must also ldquoensure that vehicle
portals are used for the entry and exit of land vehicles into and from a protected areardquo119
Physical protection measures are also required to reduce the chance of a forced land
vehicle entry into a protected area120
The power to conduct searches upon entry to a protected area is also provided by the
112 SOR2000-209 113 Ibid s 8114 Ibid s 11(a)(i)115 Ibid s 9116 Ibid s 141117 Ibid s 17(1)118 Ibid s 171119 Ibid s 91(1)120 Ibid s 91(4)
49
Nuclear Security Regulations Signs must be posted that are visible to people about to
enter the protected area stating that they must allow a nuclear security officer (ldquoNSOrdquo) to
ldquosearch them and everything in their possession including any land vehicle for weapons
and explosive substancesrdquo121 In addition when leaving the protected area people must
allow NSOs to ldquosearch them and everything in their possession including any land
vehicle for Category I II or III nuclear materialrdquo122 People are not permitted to enter or
leave a protected area unless these searches are carried out123 The Nuclear Security
Regulations provide for the method of search including ldquoa hand-held scanner a walk-
through scanner or any similar devicerdquo124 In addition if an NSO determines it
necessary a frisk search can be carried out by a person of the same sex125
I have been informed that the area outside of but adjacent to the ldquoprotected areardquo is
referred to as the ldquocontrolled areardquo This area includes roadways and waterways within
the nuclear facilityrsquos property boundaries adjacent to or in close proximity to the nuclear
power plantrsquos protected area and may be generally accessible to the public
As a result of the September 11 2001 terrorist attacks the Nuclear Security Regulations
were amended to require that high security nuclear facilities maintain an on-site armed
Nuclear Response Force (ldquoNRFrdquo)126 The NRF is composed of specialized NSOs
Section 32 of the Nuclear Security Regulations requires the NRF to be capable of making
an effective intervention taking into account the threat
121 Ibid s 27(1)(a)122 Ibid s 27(1)(b)123 Ibid s 27(2)124 Ibid s 27(5)(a)125 Ibid s 27(5)(b)126 Ibid s 32
50
Members of the NRF are mandated by the Nuclear Security Regulations to be ldquotrained in
the use of firearms authorized to carry firearms in Canada and qualified to use themrdquo127
However to satisfy this requirement the NRF resorts to the PWPA since the federal
regulations do not authorize the NRF to carry firearms without a licence However
under s 2(1) of the PWPA NSOs are designated as ldquoguardsrdquo with the powers of a peace
officer most significantly to carry and use firearms without having to be licensed128
Such a designation also enables the OPG to acquire and dispose of firearms
In the consultations I had with the OPG and the CNSC they advised me that NSOs
receive training equivalent to Canadian police standards and that NRF officers receive
training equivalent to federal and provincial police tactical team requirements
Another aspect of the PWPA used to secure nuclear power plants relates to powers
exercised by NSOs in ldquocontrolled areasrdquo The federal regulations do not provide the
NSOs with any power to demand identification within this area However pursuant to
the PWPA as appointed ldquoguardsrdquo the NSOs have the power to demand identity
verification in the controlled area They also have the authority to arrest anyone who
obstructs NSOs in the performance of their duties under the PWPA
In addition to using the PWPA to secure the controlled areas I have been advised by the
OPG that NSOs use powers pursuant to the PWPA to secure areas within 100 metres of a
nuclear facilityrsquos property line immediately adjacent to the controlled area These powers
are exercised under the broad language of the PWPA regarding ldquoapproaches to public
127 Ibid s 1 (on-site nuclear response force definition)128 Section 11707 of the Criminal Code exempts peace officers from licensing requirements for possessing firearms and other prohibited and restricted weapons
51
worksrdquo This is an illustration of the problem with the vagueness of this language in the
legislation As these powers are exercised on public land they could be challenged as a
potential infringement on individual rights and freedoms However I have been advised
that there have been no such incidents to date The need to ensure the security of these
facilities must be taken into the balance
NSOs must be able to monitor and control access to the controlled areas and areas close
to a nuclear power plantrsquos property line This provides for a more secure perimeter
around these facilities They need authority to challenge individuals acting in a suspicious
manner or conducting surveillance of nuclear facilities The OPG has informed me that
areas outside a nuclear facilityrsquos property line immediately adjacent to the controlled
area are still close enough to take advantage of the short distance to conduct intelligence
using high-powered surveillance equipment These nuclear power plants are not located
on isolated islands and are therefore vulnerable Both the Pickering Nuclear Generating
Station and the Darlington Nuclear Generating Station operate within major urban areas
being 30 km and 60 km east of downtown Toronto respectively I am advised that
previous events such as ldquoThe Toronto 18rdquo129 have shown that those intent on targeting
vital infrastructure such as power generating facilities often use reconnaissance and
intelligence gathering as precursor tactics
Recommendation
If the PWPA is to be repealed it is imperative that those who secure our nuclear and
power generating facilities be given the requisite specific legislative powers to do so
129 See for example ldquoLast 2 Toronto 18 accused found guiltyrdquo CBC News (23 June 2010) online cbcca lthttpwwwcbccanewscanadatorontostory20100623toronto-18-verdicthtmlgt
52
The source for these powers should be set out in the federal Nuclear Security
Regulations However if this is not a desired option the Government of Ontario must
consider specific legislation setting out the specific powers required to properly secure
these facilities and the specific location in which these powers can be exercised Such
legislation should not be passed without proper notice consultation and legislative
debate
53
SECTION 6 CONCLUSION
The PWPA was enacted in 1939 to support the war effort At the time the protection of
Ontariorsquos hydroelectric facilities from sabotage was of particular concern Since then the
PWPA has been used to provide the legal foundation for the powers exercised by the
police in providing court security and even more recently by the OPG in securing
nuclear power facilities In June 2010 the PWPA was used to provide powers to secure
intergovernmental conferences The vagueness of the PWPA permits it to be used in
situations when it is arguably not necessary and potentially abusive In my view the
PWPA has been used for purposes beyond its original intent
The time for the PWPA seems to have passed If the Government of Ontario enacts as I
have suggested specific legislation to provide for courthouse security and power
generating infrastructure security it would appear that there is no longer a need for the
PWPA I am also mindful of the existence of counter-terrorism and emergencies
legislation to deal with these situations as they arise
ldquoIn determining the boundaries of police powers caution is required to ensure the proper
balance between preventing excessive intrusions on an individualrsquos liberty and privacy
and enabling the police to do what is reasonably necessary to perform their duties in
protecting the publicrdquo130 The overly broad and vague language of the PWPA does not
strike this required balance with individual rights and freedoms
The late Justice Jackson of the United States Supreme Court stated that every
emergency power once conferred ldquolies about like a loaded weapon ready for the hand of
130 R v Clayton [2007] 2 SCR 725 at 742
54
any authority that can bring forward a plausible claim of an urgent needrdquo131 The need to
protect the public must be balanced with the requirement to preserve fundamental rights
and freedoms
Yet at the same time ldquoCanadians are entitled to demand the best public order policing
possible from their governmentrdquo132 There is no question that we live in a different world
post 911 We live in difficult times with constant threats both domestically and from
abroad The police clearly need to be given adequate powers to carry out their duties
The police use their expertise on a daily basis to assess the powers they require In
instances when they take action that exceeds their powers their actions are examined by
various mandated bodies This process I believe results in the proper balance between
police powers and individual rights and freedoms Therefore any legislation that purports
to grant special police powers must be specific and direct and developed in consultation
with stakeholders and tested through thorough debate in our transparent democratic
system
131 Korematsu v United States 323 US 214 (1944)132 Supra note 26 p 8
55
relatively large security perimeter designated by the regulation individuals may allege
they were not permitted to communicate directly with those they were protesting against
Furthermore individuals could not communicate in public places such as public streets
where the right to freedom of expression has previously been found to exist88
Commissioner Ted Hughes completed an interim report following a public hearing into
the complaints regarding events that took place with respect to the Asia Pacific Economic
Cooperation (APEC) Conference in Vancouver British Columbia in November 1997
Commissioner Hughes recommended that generous opportunity should be afforded to
peaceful protesters to be seen in their protest activities by guests at the event89
Section 7 of the Charter provides that ldquoEveryone has the right to life liberty and security
of the person and the right not to be deprived thereof except in accordance with the
principles of fundamental justicerdquo The PWPA raises issues regarding the liberty and
security of the person in providing for warrantless searches and stopping for
identification Furthermore vague laws offend two fundamental values of our legal
system90 Firstly individuals are not provided with sufficient guidance as to what
behaviour a law prohibits Secondly those in charge of enforcing the law are not
provided with clear guidance as to how to enforce it A vague law can lead to inconsistent
and arbitrary enforcement91
88 Supra note 86 89 Canada Commission for Public Complaints Against the RCMP APEC ndash Commission Interim Report (31 July 2001) at s 3111 (Commissioner Ted Hughes QC) online Commission for Public Complaints Against the RCMP lthttpwwwcpc-cppgccaprrrepphrapecapec-31-engaspxgt90 Supra note 87 at 47-60 91 ldquoA vague provision does not provide an adequate basis for legal debate that is for reaching a conclusion as to its meaning by reasoned analysis applying legal criteria It does not sufficiently delineate any area of risk and thus can provide neither fair notice to the citizen nor a limitation of enforcement discretion Such
38
As described by Professor Hogg92
The requirement that any limit on rights be prescribed by law reflects two values that are basic to constitutionalism or the rule of law First in order to preclude arbitrary and discriminatory action by government officials all official action in derogation of rights must be authorized by law Secondly citizens must have reasonable opportunity to know what is prohibited so that they can act accordingly Both these values are satisfied by a law that fulfils two requirements (1) the law must be adequately accessible to the public and (2) the law must be formulated with sufficient precision to enable people to regulate their conduct by it and to provide guidance to those who apply the law
As I stated earlier the phrase ldquoany approach theretordquo contained in s 3(a) of the PWPA is
potentially vague No criteria are provided to assist in determining when one is on ldquoany
approach theretordquo A phrase such as ldquoany approach theretordquo is subject to many potential
interpretations It is arguable that this language does not provide reasonable guidance for
individuals to obey the law and for the law to be consistently enforced
Section 8 of the Charter provides that ldquoEveryone has the right to be secure against
unreasonable search or seizurerdquo A warrantless search or seizure is only reasonable if the
search was authorized by law the law itself is reasonable and the manner in which the
search carried out was reasonable93 The fact that no reasonable or probable suspicions
are needed to carry out a search pursuant to s 3(b) of the PWPA raises some issues The
only prerequisite to such a search is that the person or vehicle being subjected to a search
is entering or attempting to enter a public work
a provision is not intelligible to use the terminology of previous decisions of this Court and therefore it fails to give sufficient indications that could fuel a legal debaterdquo (R v Nova Scotia Pharmaceutical Society [1992] 2 SCR 606 at 639-640) 92 Supra note 87 at 38-1293 R v Nolet [2010] SCJ No 24 at para 21
39
Whether the PWPArsquos s 3(b) authority to undertake warrantless searches is ldquoreasonablerdquo
depends on the reasonableness of the impact on the subject of the search ldquoThe
individuals reasonable expectation of privacy must of course be balanced against the
public interest in effective law enforcementrdquo94 It is harder to justify a warrantless search
where the reasonable expectation of privacy is higher For example interference with
bodily integrity will raise the standard of reasonableness Conversely in situations where
people expect to have a lower level of privacy the standard to prove reasonableness is
lower
One rightfully has some expectation of privacy when in public but it does not rise to the
level of privacy that one expects in onersquos home The expectation of privacy further
decreases when one attempts to enter a ldquopublic workrdquo especially in the context of a
secured barrier to an intergovernmental conference
Section 9 of the Charter provides that ldquoEveryone has the right not to be arbitrarily
detained or imprisonedrdquo95 Under s 3(a) of the PWPA a person entering or attempting to
enter or approach a public work must provide his or her name and address and state the
purpose for which he or she desires to enter the public work In order for a guard or
peace officer to carry out this duty the guard or peace officer may ldquostoprdquo the person from
further approaching or entering the public work and the person is not permitted under the
statute to decide not to enter By so doing it is arguable the guard or peace officer has
assumed control over the movement of the individual by a demand or direction The
94 R v Rao [1984] OJ No 3180 at para 79 (CA)95 ldquoDetention under s 9hellipof the Charter refers to a suspension of the individualrsquos liberty interest by a significant physical or psychological restraint Psychological detention is established either where the individual has a legal obligation to comply with the restrictive request or demand or a reasonable person would conclude by reason of the state conduct that he or she had no choice but to complyrdquo (R v Grant [2009] SCJ No 32 at para 44)
40
PWPA provides for a significant legal consequence if the demand or direction is not
followed since ldquoEvery person who neglects or refuses to comply with a request or
direction made under this Act by a guard or peace officer and every person found upon a
public work or any approach thereto without lawful authority the proof whereof lies on
him or her is guilty of an offence and on conviction is liable to a fine of not more than
$500 or to imprisonment for a term of not more than two months or to bothrdquo96
Pursuant to s 3(b) of the PWPA a guard or peace officer may search any person entering
or attempting to enter a public work These searches would necessitate the detention of a
person If a guard or peace officer performs such a search he or she has taken control
over the movement of the person by a demand or direction The same serious legal
consequence results from failing to obey this demand or direction as that which results
from failing to obey the demand or direction pursuant to s 3(a) of the PWPA As a
result ldquodetentionsrdquo could occur pursuant to both s 3(a) and s 3(b) of the PWPA
The question that would need to be addressed in any challenge to the PWPA is whether
the detentions permitted by the PWPA are arbitrary in nature The use of the term ldquoany
approach theretordquo is vague and imprecise A person could be deemed to be on ldquoany
approach theretordquo a great distance from the entrance of a public work and their detention
might very well be arbitrary In addition the fact that the guards and peace officers
determine the boundaries of the ldquoapproachesrdquo which cannot be contested seems
arbitrary as well as who they chose to search
96 It should be noted that not all communications with state authorities and police officers will amount to a detention The question is whether a person may reasonably believe that he or she is free to refuse to comply
41
Section 11(d) of the Charter provides that ldquoAny person charged with an offence has the
right to be presumed innocent until proven guilty according to law in a fair and public
hearing by an independent and impartial tribunalrdquo This requires that the Crown have the
burden of proving the guilt of an individual charged with an offence97 Provisions that
place the burden on the accused to disprove on the balance of probabilities an essential
element of an offence raises s 11(d) concerns because convictions would be possible
even if reasonable doubt existed98 The presumption of innocence is not only infringed
upon by a requirement that an accused disprove an essential element of an offence but
also any requirement on an accused to prove a fact on the balance of probabilities to
avoid conviction
Section 5(1) of the PWPA states that ldquoEvery person who neglects or refuses to comply
with a request or direction made under this Act by a guard or peace officer and every
person found upon a public work or any approach thereto without lawful authority the
proof whereof lies on him or her is guilty of an offence and on conviction is liable to a
fine of not more than $500 or to imprisonment for a term of not more than two months or
to bothrdquo For the offence of being found upon a public work or on any approach to a
public work without lawful authority the burden of proof has been ldquoshiftedrdquo from the
Crown to the accused to prove lawful authority
As the foregoing analysis reveals there are certainly many concerns that arise when one
places the PWPA under the lens of the Charter However the rights and freedoms
provided by the Charter are not absolute They are ldquosubject only to such reasonable
97 R v Oakes [1986] 1 SCR 10398 Ibid at 132
42
limits prescribed by law as can be demonstrably justified in a free and democratic
societyrdquo99
In assessing whether a law which infringes the Charter is saved by s 1 a court examines
both the object of the law and the measures taken to achieve that objective A lawrsquos
objective achieves the status of being sufficiently important to justify overriding a
Charter right only when it is consistent with the values of a free and democratic society
The objective must relate to pressing and substantial concerns and not concerns that are
trivial and must be focussed on ldquothe realization of collective goals of fundamental
importancerdquo100 The measures adopted must be ldquorationally connectedrdquo to the objective of
the law101 The measures ldquoshould impair lsquoas little as possiblersquo the right or freedom in
questionrdquo102 Furthermore there must be ldquoa proportionality between the effects of the
measures which are responsible for limiting the Charter right or freedom and the
objective which has been identified as of lsquosufficient importancersquordquo103
An issue that may affect whether the potential limitation on rights and freedoms of the
PWPA and O Reg 23310 were ldquoprescribed by lawrdquo is whether the regulation was
adequately accessible to the public The Ontario Ombudsman the CCLA and the Ontario
Bar Association (ldquoOBArdquo) all noted a lack of notice regarding O Reg 23310 and its
effects prior to and during the G20 While the text of the regulation was available prior
99 Charter s 1 The Superior Court of Quebec decision of Tremblay v Queacutebec (Attorney General) [2001] JQ No 1504 (CS) involved an interim injunction brought by an applicant who was denied entry into the secured perimeter during the 2001 Summit of the Americas in Queacutebec City The applicant sought an injunction to either eliminate the security barrier or to be given a pass to let him within the secured perimeter Even though the Court held that the erection of the security zone violated the applicantrsquos right to freedom of expression and peaceful assembly The court held that the infringement was ldquodemonstrably justified in a free and democratic societyrdquo100 Supra note 97 at 136101 Ibid at 139102 Ibid103 Ibid
43
to the G20 it was only available on a website not frequently accessed by the public
Since O Reg 23310 was not published in The Ontario Gazette until after it was
revoked it may be that the regulation was not adequately accessible to the public
Reverse onus offences have been found to be ldquorationally connectedrdquo when there is plainly
a rational connection between the proven fact and the fact to be presumed Reverse
onuses have also been upheld when the burden placed on the Crown would be virtually
impossible to meet (such as proving sanity)104 Even if the accused only has the burden
of disproving the fact that heshe did not have lawful authority to be in a public work or
on an approach thereto there may not be a rational connection between the proven fact
and the fact to be presumed
The history of threats and violence at previous intergovernmental conferences
demonstrated that the protection of G20 participants was a pressing and substantial
concern However given the broadness of the PWPA every exercise of it raises the
potential for Charter scrutiny
Recommendation
Given the public policy considerations I have raised regarding the PWPA and Charter
concerns that could arise I recommend that the PWPA be repealed after the Province has
considered potential policy and security gaps as a result of its repeal
B Other uses of the Public Works Protection Act
It appears from my consultations with stakeholder groups that if the PWPA is repealed
104 R v Chaulk [1990] 3 SCR 1303 at 1340
44
there are two areas which may require legislation to provide specific peace officer
powers These two areas are court security and the protection of nuclear power facilities
and other power generating infrastructures
1 Court Security
During my decade as Ontariorsquos Attorney General (1975 to 1985) there were three
murders in provincial courthouses as well as many threats to members of courthouse staff
and others As violent acts in courthouses can be anticipated courtroom security is often
required
Individuals are compelled to go to court for a variety of reasons such as appearing as an
accused as a witness or for jury duty To provide protection to those who work there or
are compelled to attend an adequate level of court security may require a search without
warrant of each and every individual who seeks to enter a courthouse It is not reasonable
to require prior judicial authorization for each search that takes place
The courts have considered the constitutionality of these provisions of the PWPA in
conjunction with section 137 of the Ontario Police Services Act in the context of court
security
Section 137 of the Ontario Police Services Act imposes a responsibility on municipal
police services boards to secure the premises where court proceedings are conducted and
includes
1 Ensuring the security of judges and of persons taking part in or attending proceedings
45
2 During the hours when judges and members of the public are normally present ensuring the security of the premises
3 Ensuring the secure custody of persons in custody who are on or about the premises including persons taken into custody at proceedings
4 Determining appropriate levels of security for the purposes of paragraphs 1 2 and 3
In R v Campanella105 Ms Campanella was attending the John Sopinka Courthouse in
Hamilton At the courthouse there were signs posted stating that those who entered
would be searched for weapons When Ms Campanellarsquos bag was searched marijuana
was found and she was charged with the possession of marijuana She argued that her s
8 Charter protection against unreasonable search and seizure had been violated and the
marijuana discovered during the search should therefore be excluded as evidence The
trial judge and the summary convictions appeal court rejected the section 8 Charter
argument and the appellant appealed to the Ontario Court of Appeal
The Ontario Court of Appeal agreed that ldquogiven the importance of the government
objective and the context in which these searches take place it is reasonable to authorize
warrantless searches of those entering courthouse facilitiesrdquo106 The Court stated ldquothe
only effective way to diminish the risk in a large courthouse is to subject everyone
without prior security clearance to some kind of inspection I can see no other feasible
means of achieving the aimrdquo107
The Court also pointed out the concern relating to the erosion of the benefits and
105 [2002] OJ No 5104 (SCJ) affrsquod [2005] OJ No 1345 (CA) [ldquoCampanellardquo]106 R v Campanella [2005] OJ No 1345 at para 17 (CA)107 Ibid at para 19
46
protections conferred by s 8 of the Charter108
I am sensitive to the concern that we should not erode the benefits and protections of s 8 by gradually sanctioning ever-greater intrusions into privacy because of unfounded fears We should not lightly accept that searches in public places are justified solely because people have become used to them and expect them However the record in this case establishes the justification for the kinds of searches carried out in this case
Ultimately the appeal was dismissed and s 137 of the Police Services Act and s 3(b) of
the PWPA) were held to comply with s 8 of the Charter109
In its consultations with me the OBA similarly stated that the existing nature of court
security is necessary and is generally ldquowell toleratedrdquo At the same time however it
submits that the security regime should not be ldquoshoehornedrdquo into the PWPA regime and
that it would be preferable to provide a legislative framework tailored for the specific
security requirements While the PWPA has been relied upon as support for the exercise
of powers by the police in providing court security the OBA submits that the PWPArsquos
ldquosingle security schemerdquo which declares something a ldquopublic workrdquo is an ldquoawkward
blunt instrument in a world where more specialized tools are necessaryrdquo When
warrantless searches are being done on a routine basis it is advisable to have specific
legislation providing peace officers with such power
Recommendation
Court security legislation is currently in place in many jurisdictions across Canada and
contain provisions that permit warrantless searches of persons wanting to access a
108 Ibid at para 25109 The Court in R v SS [2005] OJ No 5002 (SCJ) agreed with the findings and rationale of the Court of Appeal in Campanella
47
courthouse The constitutional validity of such legislation in Manitoba was upheld by that
provincersquos highest court110
Given the ongoing need for warrantless searches at courthouses the Province of Ontario
should consider specific court security legislation in Ontario to support the security
measures in our courthouses if the PWPA is to be repealed taking into consideration the
responsibilities of the municipal police services boards provided in s 137 of the Police
Services Act This legislation should only be passed after proper notice consultation and
legislative debate
2 Power Generating Infrastructures
It is clear from the submissions that I received from representatives of OPG and the
Canadian Nuclear Safety Commission (ldquoCNSCrdquo) that the PWPA currently plays a role in
providing security officers with the powers to secure power generating infrastructures
including the ability to carry firearms and the ability to stop and require identification
from those in proximity to those nuclear plants
Security is of the utmost importance in protecting a nuclear power plant Members of the
public do not need to access a nuclear or similar power facility unless employed at the
facility or carrying out work for the facility111
The security of areas within nuclear power plants is governed by the Nuclear Security
110 R v Lindsay [2004] MJ No 380 (CA) 111 Though the discussion focuses on nuclear power plants I have been informed that other power generating infrastructures use the PWPA to designate their security officers as guards As a result if the PWPA is repealed it will be necessary to broaden the consultations in relation to these other power generating infrastructures
48
Regulations112 Every nuclear power plant must be located within a ldquoprotected areardquo113
This protected area is the area within a fenced perimeter which is alarmed and
continually patrolled This area must be equipped with devices that employ two
independent systems to detect intrusion into the area114 The Nuclear Security
Regulations also provide detailed specifications for the barrier which must enclose the
protected area115 In addition licensees must ldquoidentify all vital areas and implement
physical protection measures ndash including access control and measures designed to delay
unauthorized accessrdquo116
The Nuclear Security Regulations also provide detailed provisions regarding entry into
protected areas No person can ldquoenter a protected area without physical proof of the
recorded authorization of the licenseerdquo117 Further to this on entry into a protected area
ldquothat personrsquos identity shall be verified by two separate personnel identity verification
systems one of which is an access card reader and the other of which is a biometric
personnel identity verification devicerdquo118 Licensees must also ldquoensure that vehicle
portals are used for the entry and exit of land vehicles into and from a protected areardquo119
Physical protection measures are also required to reduce the chance of a forced land
vehicle entry into a protected area120
The power to conduct searches upon entry to a protected area is also provided by the
112 SOR2000-209 113 Ibid s 8114 Ibid s 11(a)(i)115 Ibid s 9116 Ibid s 141117 Ibid s 17(1)118 Ibid s 171119 Ibid s 91(1)120 Ibid s 91(4)
49
Nuclear Security Regulations Signs must be posted that are visible to people about to
enter the protected area stating that they must allow a nuclear security officer (ldquoNSOrdquo) to
ldquosearch them and everything in their possession including any land vehicle for weapons
and explosive substancesrdquo121 In addition when leaving the protected area people must
allow NSOs to ldquosearch them and everything in their possession including any land
vehicle for Category I II or III nuclear materialrdquo122 People are not permitted to enter or
leave a protected area unless these searches are carried out123 The Nuclear Security
Regulations provide for the method of search including ldquoa hand-held scanner a walk-
through scanner or any similar devicerdquo124 In addition if an NSO determines it
necessary a frisk search can be carried out by a person of the same sex125
I have been informed that the area outside of but adjacent to the ldquoprotected areardquo is
referred to as the ldquocontrolled areardquo This area includes roadways and waterways within
the nuclear facilityrsquos property boundaries adjacent to or in close proximity to the nuclear
power plantrsquos protected area and may be generally accessible to the public
As a result of the September 11 2001 terrorist attacks the Nuclear Security Regulations
were amended to require that high security nuclear facilities maintain an on-site armed
Nuclear Response Force (ldquoNRFrdquo)126 The NRF is composed of specialized NSOs
Section 32 of the Nuclear Security Regulations requires the NRF to be capable of making
an effective intervention taking into account the threat
121 Ibid s 27(1)(a)122 Ibid s 27(1)(b)123 Ibid s 27(2)124 Ibid s 27(5)(a)125 Ibid s 27(5)(b)126 Ibid s 32
50
Members of the NRF are mandated by the Nuclear Security Regulations to be ldquotrained in
the use of firearms authorized to carry firearms in Canada and qualified to use themrdquo127
However to satisfy this requirement the NRF resorts to the PWPA since the federal
regulations do not authorize the NRF to carry firearms without a licence However
under s 2(1) of the PWPA NSOs are designated as ldquoguardsrdquo with the powers of a peace
officer most significantly to carry and use firearms without having to be licensed128
Such a designation also enables the OPG to acquire and dispose of firearms
In the consultations I had with the OPG and the CNSC they advised me that NSOs
receive training equivalent to Canadian police standards and that NRF officers receive
training equivalent to federal and provincial police tactical team requirements
Another aspect of the PWPA used to secure nuclear power plants relates to powers
exercised by NSOs in ldquocontrolled areasrdquo The federal regulations do not provide the
NSOs with any power to demand identification within this area However pursuant to
the PWPA as appointed ldquoguardsrdquo the NSOs have the power to demand identity
verification in the controlled area They also have the authority to arrest anyone who
obstructs NSOs in the performance of their duties under the PWPA
In addition to using the PWPA to secure the controlled areas I have been advised by the
OPG that NSOs use powers pursuant to the PWPA to secure areas within 100 metres of a
nuclear facilityrsquos property line immediately adjacent to the controlled area These powers
are exercised under the broad language of the PWPA regarding ldquoapproaches to public
127 Ibid s 1 (on-site nuclear response force definition)128 Section 11707 of the Criminal Code exempts peace officers from licensing requirements for possessing firearms and other prohibited and restricted weapons
51
worksrdquo This is an illustration of the problem with the vagueness of this language in the
legislation As these powers are exercised on public land they could be challenged as a
potential infringement on individual rights and freedoms However I have been advised
that there have been no such incidents to date The need to ensure the security of these
facilities must be taken into the balance
NSOs must be able to monitor and control access to the controlled areas and areas close
to a nuclear power plantrsquos property line This provides for a more secure perimeter
around these facilities They need authority to challenge individuals acting in a suspicious
manner or conducting surveillance of nuclear facilities The OPG has informed me that
areas outside a nuclear facilityrsquos property line immediately adjacent to the controlled
area are still close enough to take advantage of the short distance to conduct intelligence
using high-powered surveillance equipment These nuclear power plants are not located
on isolated islands and are therefore vulnerable Both the Pickering Nuclear Generating
Station and the Darlington Nuclear Generating Station operate within major urban areas
being 30 km and 60 km east of downtown Toronto respectively I am advised that
previous events such as ldquoThe Toronto 18rdquo129 have shown that those intent on targeting
vital infrastructure such as power generating facilities often use reconnaissance and
intelligence gathering as precursor tactics
Recommendation
If the PWPA is to be repealed it is imperative that those who secure our nuclear and
power generating facilities be given the requisite specific legislative powers to do so
129 See for example ldquoLast 2 Toronto 18 accused found guiltyrdquo CBC News (23 June 2010) online cbcca lthttpwwwcbccanewscanadatorontostory20100623toronto-18-verdicthtmlgt
52
The source for these powers should be set out in the federal Nuclear Security
Regulations However if this is not a desired option the Government of Ontario must
consider specific legislation setting out the specific powers required to properly secure
these facilities and the specific location in which these powers can be exercised Such
legislation should not be passed without proper notice consultation and legislative
debate
53
SECTION 6 CONCLUSION
The PWPA was enacted in 1939 to support the war effort At the time the protection of
Ontariorsquos hydroelectric facilities from sabotage was of particular concern Since then the
PWPA has been used to provide the legal foundation for the powers exercised by the
police in providing court security and even more recently by the OPG in securing
nuclear power facilities In June 2010 the PWPA was used to provide powers to secure
intergovernmental conferences The vagueness of the PWPA permits it to be used in
situations when it is arguably not necessary and potentially abusive In my view the
PWPA has been used for purposes beyond its original intent
The time for the PWPA seems to have passed If the Government of Ontario enacts as I
have suggested specific legislation to provide for courthouse security and power
generating infrastructure security it would appear that there is no longer a need for the
PWPA I am also mindful of the existence of counter-terrorism and emergencies
legislation to deal with these situations as they arise
ldquoIn determining the boundaries of police powers caution is required to ensure the proper
balance between preventing excessive intrusions on an individualrsquos liberty and privacy
and enabling the police to do what is reasonably necessary to perform their duties in
protecting the publicrdquo130 The overly broad and vague language of the PWPA does not
strike this required balance with individual rights and freedoms
The late Justice Jackson of the United States Supreme Court stated that every
emergency power once conferred ldquolies about like a loaded weapon ready for the hand of
130 R v Clayton [2007] 2 SCR 725 at 742
54
any authority that can bring forward a plausible claim of an urgent needrdquo131 The need to
protect the public must be balanced with the requirement to preserve fundamental rights
and freedoms
Yet at the same time ldquoCanadians are entitled to demand the best public order policing
possible from their governmentrdquo132 There is no question that we live in a different world
post 911 We live in difficult times with constant threats both domestically and from
abroad The police clearly need to be given adequate powers to carry out their duties
The police use their expertise on a daily basis to assess the powers they require In
instances when they take action that exceeds their powers their actions are examined by
various mandated bodies This process I believe results in the proper balance between
police powers and individual rights and freedoms Therefore any legislation that purports
to grant special police powers must be specific and direct and developed in consultation
with stakeholders and tested through thorough debate in our transparent democratic
system
131 Korematsu v United States 323 US 214 (1944)132 Supra note 26 p 8
55
As described by Professor Hogg92
The requirement that any limit on rights be prescribed by law reflects two values that are basic to constitutionalism or the rule of law First in order to preclude arbitrary and discriminatory action by government officials all official action in derogation of rights must be authorized by law Secondly citizens must have reasonable opportunity to know what is prohibited so that they can act accordingly Both these values are satisfied by a law that fulfils two requirements (1) the law must be adequately accessible to the public and (2) the law must be formulated with sufficient precision to enable people to regulate their conduct by it and to provide guidance to those who apply the law
As I stated earlier the phrase ldquoany approach theretordquo contained in s 3(a) of the PWPA is
potentially vague No criteria are provided to assist in determining when one is on ldquoany
approach theretordquo A phrase such as ldquoany approach theretordquo is subject to many potential
interpretations It is arguable that this language does not provide reasonable guidance for
individuals to obey the law and for the law to be consistently enforced
Section 8 of the Charter provides that ldquoEveryone has the right to be secure against
unreasonable search or seizurerdquo A warrantless search or seizure is only reasonable if the
search was authorized by law the law itself is reasonable and the manner in which the
search carried out was reasonable93 The fact that no reasonable or probable suspicions
are needed to carry out a search pursuant to s 3(b) of the PWPA raises some issues The
only prerequisite to such a search is that the person or vehicle being subjected to a search
is entering or attempting to enter a public work
a provision is not intelligible to use the terminology of previous decisions of this Court and therefore it fails to give sufficient indications that could fuel a legal debaterdquo (R v Nova Scotia Pharmaceutical Society [1992] 2 SCR 606 at 639-640) 92 Supra note 87 at 38-1293 R v Nolet [2010] SCJ No 24 at para 21
39
Whether the PWPArsquos s 3(b) authority to undertake warrantless searches is ldquoreasonablerdquo
depends on the reasonableness of the impact on the subject of the search ldquoThe
individuals reasonable expectation of privacy must of course be balanced against the
public interest in effective law enforcementrdquo94 It is harder to justify a warrantless search
where the reasonable expectation of privacy is higher For example interference with
bodily integrity will raise the standard of reasonableness Conversely in situations where
people expect to have a lower level of privacy the standard to prove reasonableness is
lower
One rightfully has some expectation of privacy when in public but it does not rise to the
level of privacy that one expects in onersquos home The expectation of privacy further
decreases when one attempts to enter a ldquopublic workrdquo especially in the context of a
secured barrier to an intergovernmental conference
Section 9 of the Charter provides that ldquoEveryone has the right not to be arbitrarily
detained or imprisonedrdquo95 Under s 3(a) of the PWPA a person entering or attempting to
enter or approach a public work must provide his or her name and address and state the
purpose for which he or she desires to enter the public work In order for a guard or
peace officer to carry out this duty the guard or peace officer may ldquostoprdquo the person from
further approaching or entering the public work and the person is not permitted under the
statute to decide not to enter By so doing it is arguable the guard or peace officer has
assumed control over the movement of the individual by a demand or direction The
94 R v Rao [1984] OJ No 3180 at para 79 (CA)95 ldquoDetention under s 9hellipof the Charter refers to a suspension of the individualrsquos liberty interest by a significant physical or psychological restraint Psychological detention is established either where the individual has a legal obligation to comply with the restrictive request or demand or a reasonable person would conclude by reason of the state conduct that he or she had no choice but to complyrdquo (R v Grant [2009] SCJ No 32 at para 44)
40
PWPA provides for a significant legal consequence if the demand or direction is not
followed since ldquoEvery person who neglects or refuses to comply with a request or
direction made under this Act by a guard or peace officer and every person found upon a
public work or any approach thereto without lawful authority the proof whereof lies on
him or her is guilty of an offence and on conviction is liable to a fine of not more than
$500 or to imprisonment for a term of not more than two months or to bothrdquo96
Pursuant to s 3(b) of the PWPA a guard or peace officer may search any person entering
or attempting to enter a public work These searches would necessitate the detention of a
person If a guard or peace officer performs such a search he or she has taken control
over the movement of the person by a demand or direction The same serious legal
consequence results from failing to obey this demand or direction as that which results
from failing to obey the demand or direction pursuant to s 3(a) of the PWPA As a
result ldquodetentionsrdquo could occur pursuant to both s 3(a) and s 3(b) of the PWPA
The question that would need to be addressed in any challenge to the PWPA is whether
the detentions permitted by the PWPA are arbitrary in nature The use of the term ldquoany
approach theretordquo is vague and imprecise A person could be deemed to be on ldquoany
approach theretordquo a great distance from the entrance of a public work and their detention
might very well be arbitrary In addition the fact that the guards and peace officers
determine the boundaries of the ldquoapproachesrdquo which cannot be contested seems
arbitrary as well as who they chose to search
96 It should be noted that not all communications with state authorities and police officers will amount to a detention The question is whether a person may reasonably believe that he or she is free to refuse to comply
41
Section 11(d) of the Charter provides that ldquoAny person charged with an offence has the
right to be presumed innocent until proven guilty according to law in a fair and public
hearing by an independent and impartial tribunalrdquo This requires that the Crown have the
burden of proving the guilt of an individual charged with an offence97 Provisions that
place the burden on the accused to disprove on the balance of probabilities an essential
element of an offence raises s 11(d) concerns because convictions would be possible
even if reasonable doubt existed98 The presumption of innocence is not only infringed
upon by a requirement that an accused disprove an essential element of an offence but
also any requirement on an accused to prove a fact on the balance of probabilities to
avoid conviction
Section 5(1) of the PWPA states that ldquoEvery person who neglects or refuses to comply
with a request or direction made under this Act by a guard or peace officer and every
person found upon a public work or any approach thereto without lawful authority the
proof whereof lies on him or her is guilty of an offence and on conviction is liable to a
fine of not more than $500 or to imprisonment for a term of not more than two months or
to bothrdquo For the offence of being found upon a public work or on any approach to a
public work without lawful authority the burden of proof has been ldquoshiftedrdquo from the
Crown to the accused to prove lawful authority
As the foregoing analysis reveals there are certainly many concerns that arise when one
places the PWPA under the lens of the Charter However the rights and freedoms
provided by the Charter are not absolute They are ldquosubject only to such reasonable
97 R v Oakes [1986] 1 SCR 10398 Ibid at 132
42
limits prescribed by law as can be demonstrably justified in a free and democratic
societyrdquo99
In assessing whether a law which infringes the Charter is saved by s 1 a court examines
both the object of the law and the measures taken to achieve that objective A lawrsquos
objective achieves the status of being sufficiently important to justify overriding a
Charter right only when it is consistent with the values of a free and democratic society
The objective must relate to pressing and substantial concerns and not concerns that are
trivial and must be focussed on ldquothe realization of collective goals of fundamental
importancerdquo100 The measures adopted must be ldquorationally connectedrdquo to the objective of
the law101 The measures ldquoshould impair lsquoas little as possiblersquo the right or freedom in
questionrdquo102 Furthermore there must be ldquoa proportionality between the effects of the
measures which are responsible for limiting the Charter right or freedom and the
objective which has been identified as of lsquosufficient importancersquordquo103
An issue that may affect whether the potential limitation on rights and freedoms of the
PWPA and O Reg 23310 were ldquoprescribed by lawrdquo is whether the regulation was
adequately accessible to the public The Ontario Ombudsman the CCLA and the Ontario
Bar Association (ldquoOBArdquo) all noted a lack of notice regarding O Reg 23310 and its
effects prior to and during the G20 While the text of the regulation was available prior
99 Charter s 1 The Superior Court of Quebec decision of Tremblay v Queacutebec (Attorney General) [2001] JQ No 1504 (CS) involved an interim injunction brought by an applicant who was denied entry into the secured perimeter during the 2001 Summit of the Americas in Queacutebec City The applicant sought an injunction to either eliminate the security barrier or to be given a pass to let him within the secured perimeter Even though the Court held that the erection of the security zone violated the applicantrsquos right to freedom of expression and peaceful assembly The court held that the infringement was ldquodemonstrably justified in a free and democratic societyrdquo100 Supra note 97 at 136101 Ibid at 139102 Ibid103 Ibid
43
to the G20 it was only available on a website not frequently accessed by the public
Since O Reg 23310 was not published in The Ontario Gazette until after it was
revoked it may be that the regulation was not adequately accessible to the public
Reverse onus offences have been found to be ldquorationally connectedrdquo when there is plainly
a rational connection between the proven fact and the fact to be presumed Reverse
onuses have also been upheld when the burden placed on the Crown would be virtually
impossible to meet (such as proving sanity)104 Even if the accused only has the burden
of disproving the fact that heshe did not have lawful authority to be in a public work or
on an approach thereto there may not be a rational connection between the proven fact
and the fact to be presumed
The history of threats and violence at previous intergovernmental conferences
demonstrated that the protection of G20 participants was a pressing and substantial
concern However given the broadness of the PWPA every exercise of it raises the
potential for Charter scrutiny
Recommendation
Given the public policy considerations I have raised regarding the PWPA and Charter
concerns that could arise I recommend that the PWPA be repealed after the Province has
considered potential policy and security gaps as a result of its repeal
B Other uses of the Public Works Protection Act
It appears from my consultations with stakeholder groups that if the PWPA is repealed
104 R v Chaulk [1990] 3 SCR 1303 at 1340
44
there are two areas which may require legislation to provide specific peace officer
powers These two areas are court security and the protection of nuclear power facilities
and other power generating infrastructures
1 Court Security
During my decade as Ontariorsquos Attorney General (1975 to 1985) there were three
murders in provincial courthouses as well as many threats to members of courthouse staff
and others As violent acts in courthouses can be anticipated courtroom security is often
required
Individuals are compelled to go to court for a variety of reasons such as appearing as an
accused as a witness or for jury duty To provide protection to those who work there or
are compelled to attend an adequate level of court security may require a search without
warrant of each and every individual who seeks to enter a courthouse It is not reasonable
to require prior judicial authorization for each search that takes place
The courts have considered the constitutionality of these provisions of the PWPA in
conjunction with section 137 of the Ontario Police Services Act in the context of court
security
Section 137 of the Ontario Police Services Act imposes a responsibility on municipal
police services boards to secure the premises where court proceedings are conducted and
includes
1 Ensuring the security of judges and of persons taking part in or attending proceedings
45
2 During the hours when judges and members of the public are normally present ensuring the security of the premises
3 Ensuring the secure custody of persons in custody who are on or about the premises including persons taken into custody at proceedings
4 Determining appropriate levels of security for the purposes of paragraphs 1 2 and 3
In R v Campanella105 Ms Campanella was attending the John Sopinka Courthouse in
Hamilton At the courthouse there were signs posted stating that those who entered
would be searched for weapons When Ms Campanellarsquos bag was searched marijuana
was found and she was charged with the possession of marijuana She argued that her s
8 Charter protection against unreasonable search and seizure had been violated and the
marijuana discovered during the search should therefore be excluded as evidence The
trial judge and the summary convictions appeal court rejected the section 8 Charter
argument and the appellant appealed to the Ontario Court of Appeal
The Ontario Court of Appeal agreed that ldquogiven the importance of the government
objective and the context in which these searches take place it is reasonable to authorize
warrantless searches of those entering courthouse facilitiesrdquo106 The Court stated ldquothe
only effective way to diminish the risk in a large courthouse is to subject everyone
without prior security clearance to some kind of inspection I can see no other feasible
means of achieving the aimrdquo107
The Court also pointed out the concern relating to the erosion of the benefits and
105 [2002] OJ No 5104 (SCJ) affrsquod [2005] OJ No 1345 (CA) [ldquoCampanellardquo]106 R v Campanella [2005] OJ No 1345 at para 17 (CA)107 Ibid at para 19
46
protections conferred by s 8 of the Charter108
I am sensitive to the concern that we should not erode the benefits and protections of s 8 by gradually sanctioning ever-greater intrusions into privacy because of unfounded fears We should not lightly accept that searches in public places are justified solely because people have become used to them and expect them However the record in this case establishes the justification for the kinds of searches carried out in this case
Ultimately the appeal was dismissed and s 137 of the Police Services Act and s 3(b) of
the PWPA) were held to comply with s 8 of the Charter109
In its consultations with me the OBA similarly stated that the existing nature of court
security is necessary and is generally ldquowell toleratedrdquo At the same time however it
submits that the security regime should not be ldquoshoehornedrdquo into the PWPA regime and
that it would be preferable to provide a legislative framework tailored for the specific
security requirements While the PWPA has been relied upon as support for the exercise
of powers by the police in providing court security the OBA submits that the PWPArsquos
ldquosingle security schemerdquo which declares something a ldquopublic workrdquo is an ldquoawkward
blunt instrument in a world where more specialized tools are necessaryrdquo When
warrantless searches are being done on a routine basis it is advisable to have specific
legislation providing peace officers with such power
Recommendation
Court security legislation is currently in place in many jurisdictions across Canada and
contain provisions that permit warrantless searches of persons wanting to access a
108 Ibid at para 25109 The Court in R v SS [2005] OJ No 5002 (SCJ) agreed with the findings and rationale of the Court of Appeal in Campanella
47
courthouse The constitutional validity of such legislation in Manitoba was upheld by that
provincersquos highest court110
Given the ongoing need for warrantless searches at courthouses the Province of Ontario
should consider specific court security legislation in Ontario to support the security
measures in our courthouses if the PWPA is to be repealed taking into consideration the
responsibilities of the municipal police services boards provided in s 137 of the Police
Services Act This legislation should only be passed after proper notice consultation and
legislative debate
2 Power Generating Infrastructures
It is clear from the submissions that I received from representatives of OPG and the
Canadian Nuclear Safety Commission (ldquoCNSCrdquo) that the PWPA currently plays a role in
providing security officers with the powers to secure power generating infrastructures
including the ability to carry firearms and the ability to stop and require identification
from those in proximity to those nuclear plants
Security is of the utmost importance in protecting a nuclear power plant Members of the
public do not need to access a nuclear or similar power facility unless employed at the
facility or carrying out work for the facility111
The security of areas within nuclear power plants is governed by the Nuclear Security
110 R v Lindsay [2004] MJ No 380 (CA) 111 Though the discussion focuses on nuclear power plants I have been informed that other power generating infrastructures use the PWPA to designate their security officers as guards As a result if the PWPA is repealed it will be necessary to broaden the consultations in relation to these other power generating infrastructures
48
Regulations112 Every nuclear power plant must be located within a ldquoprotected areardquo113
This protected area is the area within a fenced perimeter which is alarmed and
continually patrolled This area must be equipped with devices that employ two
independent systems to detect intrusion into the area114 The Nuclear Security
Regulations also provide detailed specifications for the barrier which must enclose the
protected area115 In addition licensees must ldquoidentify all vital areas and implement
physical protection measures ndash including access control and measures designed to delay
unauthorized accessrdquo116
The Nuclear Security Regulations also provide detailed provisions regarding entry into
protected areas No person can ldquoenter a protected area without physical proof of the
recorded authorization of the licenseerdquo117 Further to this on entry into a protected area
ldquothat personrsquos identity shall be verified by two separate personnel identity verification
systems one of which is an access card reader and the other of which is a biometric
personnel identity verification devicerdquo118 Licensees must also ldquoensure that vehicle
portals are used for the entry and exit of land vehicles into and from a protected areardquo119
Physical protection measures are also required to reduce the chance of a forced land
vehicle entry into a protected area120
The power to conduct searches upon entry to a protected area is also provided by the
112 SOR2000-209 113 Ibid s 8114 Ibid s 11(a)(i)115 Ibid s 9116 Ibid s 141117 Ibid s 17(1)118 Ibid s 171119 Ibid s 91(1)120 Ibid s 91(4)
49
Nuclear Security Regulations Signs must be posted that are visible to people about to
enter the protected area stating that they must allow a nuclear security officer (ldquoNSOrdquo) to
ldquosearch them and everything in their possession including any land vehicle for weapons
and explosive substancesrdquo121 In addition when leaving the protected area people must
allow NSOs to ldquosearch them and everything in their possession including any land
vehicle for Category I II or III nuclear materialrdquo122 People are not permitted to enter or
leave a protected area unless these searches are carried out123 The Nuclear Security
Regulations provide for the method of search including ldquoa hand-held scanner a walk-
through scanner or any similar devicerdquo124 In addition if an NSO determines it
necessary a frisk search can be carried out by a person of the same sex125
I have been informed that the area outside of but adjacent to the ldquoprotected areardquo is
referred to as the ldquocontrolled areardquo This area includes roadways and waterways within
the nuclear facilityrsquos property boundaries adjacent to or in close proximity to the nuclear
power plantrsquos protected area and may be generally accessible to the public
As a result of the September 11 2001 terrorist attacks the Nuclear Security Regulations
were amended to require that high security nuclear facilities maintain an on-site armed
Nuclear Response Force (ldquoNRFrdquo)126 The NRF is composed of specialized NSOs
Section 32 of the Nuclear Security Regulations requires the NRF to be capable of making
an effective intervention taking into account the threat
121 Ibid s 27(1)(a)122 Ibid s 27(1)(b)123 Ibid s 27(2)124 Ibid s 27(5)(a)125 Ibid s 27(5)(b)126 Ibid s 32
50
Members of the NRF are mandated by the Nuclear Security Regulations to be ldquotrained in
the use of firearms authorized to carry firearms in Canada and qualified to use themrdquo127
However to satisfy this requirement the NRF resorts to the PWPA since the federal
regulations do not authorize the NRF to carry firearms without a licence However
under s 2(1) of the PWPA NSOs are designated as ldquoguardsrdquo with the powers of a peace
officer most significantly to carry and use firearms without having to be licensed128
Such a designation also enables the OPG to acquire and dispose of firearms
In the consultations I had with the OPG and the CNSC they advised me that NSOs
receive training equivalent to Canadian police standards and that NRF officers receive
training equivalent to federal and provincial police tactical team requirements
Another aspect of the PWPA used to secure nuclear power plants relates to powers
exercised by NSOs in ldquocontrolled areasrdquo The federal regulations do not provide the
NSOs with any power to demand identification within this area However pursuant to
the PWPA as appointed ldquoguardsrdquo the NSOs have the power to demand identity
verification in the controlled area They also have the authority to arrest anyone who
obstructs NSOs in the performance of their duties under the PWPA
In addition to using the PWPA to secure the controlled areas I have been advised by the
OPG that NSOs use powers pursuant to the PWPA to secure areas within 100 metres of a
nuclear facilityrsquos property line immediately adjacent to the controlled area These powers
are exercised under the broad language of the PWPA regarding ldquoapproaches to public
127 Ibid s 1 (on-site nuclear response force definition)128 Section 11707 of the Criminal Code exempts peace officers from licensing requirements for possessing firearms and other prohibited and restricted weapons
51
worksrdquo This is an illustration of the problem with the vagueness of this language in the
legislation As these powers are exercised on public land they could be challenged as a
potential infringement on individual rights and freedoms However I have been advised
that there have been no such incidents to date The need to ensure the security of these
facilities must be taken into the balance
NSOs must be able to monitor and control access to the controlled areas and areas close
to a nuclear power plantrsquos property line This provides for a more secure perimeter
around these facilities They need authority to challenge individuals acting in a suspicious
manner or conducting surveillance of nuclear facilities The OPG has informed me that
areas outside a nuclear facilityrsquos property line immediately adjacent to the controlled
area are still close enough to take advantage of the short distance to conduct intelligence
using high-powered surveillance equipment These nuclear power plants are not located
on isolated islands and are therefore vulnerable Both the Pickering Nuclear Generating
Station and the Darlington Nuclear Generating Station operate within major urban areas
being 30 km and 60 km east of downtown Toronto respectively I am advised that
previous events such as ldquoThe Toronto 18rdquo129 have shown that those intent on targeting
vital infrastructure such as power generating facilities often use reconnaissance and
intelligence gathering as precursor tactics
Recommendation
If the PWPA is to be repealed it is imperative that those who secure our nuclear and
power generating facilities be given the requisite specific legislative powers to do so
129 See for example ldquoLast 2 Toronto 18 accused found guiltyrdquo CBC News (23 June 2010) online cbcca lthttpwwwcbccanewscanadatorontostory20100623toronto-18-verdicthtmlgt
52
The source for these powers should be set out in the federal Nuclear Security
Regulations However if this is not a desired option the Government of Ontario must
consider specific legislation setting out the specific powers required to properly secure
these facilities and the specific location in which these powers can be exercised Such
legislation should not be passed without proper notice consultation and legislative
debate
53
SECTION 6 CONCLUSION
The PWPA was enacted in 1939 to support the war effort At the time the protection of
Ontariorsquos hydroelectric facilities from sabotage was of particular concern Since then the
PWPA has been used to provide the legal foundation for the powers exercised by the
police in providing court security and even more recently by the OPG in securing
nuclear power facilities In June 2010 the PWPA was used to provide powers to secure
intergovernmental conferences The vagueness of the PWPA permits it to be used in
situations when it is arguably not necessary and potentially abusive In my view the
PWPA has been used for purposes beyond its original intent
The time for the PWPA seems to have passed If the Government of Ontario enacts as I
have suggested specific legislation to provide for courthouse security and power
generating infrastructure security it would appear that there is no longer a need for the
PWPA I am also mindful of the existence of counter-terrorism and emergencies
legislation to deal with these situations as they arise
ldquoIn determining the boundaries of police powers caution is required to ensure the proper
balance between preventing excessive intrusions on an individualrsquos liberty and privacy
and enabling the police to do what is reasonably necessary to perform their duties in
protecting the publicrdquo130 The overly broad and vague language of the PWPA does not
strike this required balance with individual rights and freedoms
The late Justice Jackson of the United States Supreme Court stated that every
emergency power once conferred ldquolies about like a loaded weapon ready for the hand of
130 R v Clayton [2007] 2 SCR 725 at 742
54
any authority that can bring forward a plausible claim of an urgent needrdquo131 The need to
protect the public must be balanced with the requirement to preserve fundamental rights
and freedoms
Yet at the same time ldquoCanadians are entitled to demand the best public order policing
possible from their governmentrdquo132 There is no question that we live in a different world
post 911 We live in difficult times with constant threats both domestically and from
abroad The police clearly need to be given adequate powers to carry out their duties
The police use their expertise on a daily basis to assess the powers they require In
instances when they take action that exceeds their powers their actions are examined by
various mandated bodies This process I believe results in the proper balance between
police powers and individual rights and freedoms Therefore any legislation that purports
to grant special police powers must be specific and direct and developed in consultation
with stakeholders and tested through thorough debate in our transparent democratic
system
131 Korematsu v United States 323 US 214 (1944)132 Supra note 26 p 8
55
Whether the PWPArsquos s 3(b) authority to undertake warrantless searches is ldquoreasonablerdquo
depends on the reasonableness of the impact on the subject of the search ldquoThe
individuals reasonable expectation of privacy must of course be balanced against the
public interest in effective law enforcementrdquo94 It is harder to justify a warrantless search
where the reasonable expectation of privacy is higher For example interference with
bodily integrity will raise the standard of reasonableness Conversely in situations where
people expect to have a lower level of privacy the standard to prove reasonableness is
lower
One rightfully has some expectation of privacy when in public but it does not rise to the
level of privacy that one expects in onersquos home The expectation of privacy further
decreases when one attempts to enter a ldquopublic workrdquo especially in the context of a
secured barrier to an intergovernmental conference
Section 9 of the Charter provides that ldquoEveryone has the right not to be arbitrarily
detained or imprisonedrdquo95 Under s 3(a) of the PWPA a person entering or attempting to
enter or approach a public work must provide his or her name and address and state the
purpose for which he or she desires to enter the public work In order for a guard or
peace officer to carry out this duty the guard or peace officer may ldquostoprdquo the person from
further approaching or entering the public work and the person is not permitted under the
statute to decide not to enter By so doing it is arguable the guard or peace officer has
assumed control over the movement of the individual by a demand or direction The
94 R v Rao [1984] OJ No 3180 at para 79 (CA)95 ldquoDetention under s 9hellipof the Charter refers to a suspension of the individualrsquos liberty interest by a significant physical or psychological restraint Psychological detention is established either where the individual has a legal obligation to comply with the restrictive request or demand or a reasonable person would conclude by reason of the state conduct that he or she had no choice but to complyrdquo (R v Grant [2009] SCJ No 32 at para 44)
40
PWPA provides for a significant legal consequence if the demand or direction is not
followed since ldquoEvery person who neglects or refuses to comply with a request or
direction made under this Act by a guard or peace officer and every person found upon a
public work or any approach thereto without lawful authority the proof whereof lies on
him or her is guilty of an offence and on conviction is liable to a fine of not more than
$500 or to imprisonment for a term of not more than two months or to bothrdquo96
Pursuant to s 3(b) of the PWPA a guard or peace officer may search any person entering
or attempting to enter a public work These searches would necessitate the detention of a
person If a guard or peace officer performs such a search he or she has taken control
over the movement of the person by a demand or direction The same serious legal
consequence results from failing to obey this demand or direction as that which results
from failing to obey the demand or direction pursuant to s 3(a) of the PWPA As a
result ldquodetentionsrdquo could occur pursuant to both s 3(a) and s 3(b) of the PWPA
The question that would need to be addressed in any challenge to the PWPA is whether
the detentions permitted by the PWPA are arbitrary in nature The use of the term ldquoany
approach theretordquo is vague and imprecise A person could be deemed to be on ldquoany
approach theretordquo a great distance from the entrance of a public work and their detention
might very well be arbitrary In addition the fact that the guards and peace officers
determine the boundaries of the ldquoapproachesrdquo which cannot be contested seems
arbitrary as well as who they chose to search
96 It should be noted that not all communications with state authorities and police officers will amount to a detention The question is whether a person may reasonably believe that he or she is free to refuse to comply
41
Section 11(d) of the Charter provides that ldquoAny person charged with an offence has the
right to be presumed innocent until proven guilty according to law in a fair and public
hearing by an independent and impartial tribunalrdquo This requires that the Crown have the
burden of proving the guilt of an individual charged with an offence97 Provisions that
place the burden on the accused to disprove on the balance of probabilities an essential
element of an offence raises s 11(d) concerns because convictions would be possible
even if reasonable doubt existed98 The presumption of innocence is not only infringed
upon by a requirement that an accused disprove an essential element of an offence but
also any requirement on an accused to prove a fact on the balance of probabilities to
avoid conviction
Section 5(1) of the PWPA states that ldquoEvery person who neglects or refuses to comply
with a request or direction made under this Act by a guard or peace officer and every
person found upon a public work or any approach thereto without lawful authority the
proof whereof lies on him or her is guilty of an offence and on conviction is liable to a
fine of not more than $500 or to imprisonment for a term of not more than two months or
to bothrdquo For the offence of being found upon a public work or on any approach to a
public work without lawful authority the burden of proof has been ldquoshiftedrdquo from the
Crown to the accused to prove lawful authority
As the foregoing analysis reveals there are certainly many concerns that arise when one
places the PWPA under the lens of the Charter However the rights and freedoms
provided by the Charter are not absolute They are ldquosubject only to such reasonable
97 R v Oakes [1986] 1 SCR 10398 Ibid at 132
42
limits prescribed by law as can be demonstrably justified in a free and democratic
societyrdquo99
In assessing whether a law which infringes the Charter is saved by s 1 a court examines
both the object of the law and the measures taken to achieve that objective A lawrsquos
objective achieves the status of being sufficiently important to justify overriding a
Charter right only when it is consistent with the values of a free and democratic society
The objective must relate to pressing and substantial concerns and not concerns that are
trivial and must be focussed on ldquothe realization of collective goals of fundamental
importancerdquo100 The measures adopted must be ldquorationally connectedrdquo to the objective of
the law101 The measures ldquoshould impair lsquoas little as possiblersquo the right or freedom in
questionrdquo102 Furthermore there must be ldquoa proportionality between the effects of the
measures which are responsible for limiting the Charter right or freedom and the
objective which has been identified as of lsquosufficient importancersquordquo103
An issue that may affect whether the potential limitation on rights and freedoms of the
PWPA and O Reg 23310 were ldquoprescribed by lawrdquo is whether the regulation was
adequately accessible to the public The Ontario Ombudsman the CCLA and the Ontario
Bar Association (ldquoOBArdquo) all noted a lack of notice regarding O Reg 23310 and its
effects prior to and during the G20 While the text of the regulation was available prior
99 Charter s 1 The Superior Court of Quebec decision of Tremblay v Queacutebec (Attorney General) [2001] JQ No 1504 (CS) involved an interim injunction brought by an applicant who was denied entry into the secured perimeter during the 2001 Summit of the Americas in Queacutebec City The applicant sought an injunction to either eliminate the security barrier or to be given a pass to let him within the secured perimeter Even though the Court held that the erection of the security zone violated the applicantrsquos right to freedom of expression and peaceful assembly The court held that the infringement was ldquodemonstrably justified in a free and democratic societyrdquo100 Supra note 97 at 136101 Ibid at 139102 Ibid103 Ibid
43
to the G20 it was only available on a website not frequently accessed by the public
Since O Reg 23310 was not published in The Ontario Gazette until after it was
revoked it may be that the regulation was not adequately accessible to the public
Reverse onus offences have been found to be ldquorationally connectedrdquo when there is plainly
a rational connection between the proven fact and the fact to be presumed Reverse
onuses have also been upheld when the burden placed on the Crown would be virtually
impossible to meet (such as proving sanity)104 Even if the accused only has the burden
of disproving the fact that heshe did not have lawful authority to be in a public work or
on an approach thereto there may not be a rational connection between the proven fact
and the fact to be presumed
The history of threats and violence at previous intergovernmental conferences
demonstrated that the protection of G20 participants was a pressing and substantial
concern However given the broadness of the PWPA every exercise of it raises the
potential for Charter scrutiny
Recommendation
Given the public policy considerations I have raised regarding the PWPA and Charter
concerns that could arise I recommend that the PWPA be repealed after the Province has
considered potential policy and security gaps as a result of its repeal
B Other uses of the Public Works Protection Act
It appears from my consultations with stakeholder groups that if the PWPA is repealed
104 R v Chaulk [1990] 3 SCR 1303 at 1340
44
there are two areas which may require legislation to provide specific peace officer
powers These two areas are court security and the protection of nuclear power facilities
and other power generating infrastructures
1 Court Security
During my decade as Ontariorsquos Attorney General (1975 to 1985) there were three
murders in provincial courthouses as well as many threats to members of courthouse staff
and others As violent acts in courthouses can be anticipated courtroom security is often
required
Individuals are compelled to go to court for a variety of reasons such as appearing as an
accused as a witness or for jury duty To provide protection to those who work there or
are compelled to attend an adequate level of court security may require a search without
warrant of each and every individual who seeks to enter a courthouse It is not reasonable
to require prior judicial authorization for each search that takes place
The courts have considered the constitutionality of these provisions of the PWPA in
conjunction with section 137 of the Ontario Police Services Act in the context of court
security
Section 137 of the Ontario Police Services Act imposes a responsibility on municipal
police services boards to secure the premises where court proceedings are conducted and
includes
1 Ensuring the security of judges and of persons taking part in or attending proceedings
45
2 During the hours when judges and members of the public are normally present ensuring the security of the premises
3 Ensuring the secure custody of persons in custody who are on or about the premises including persons taken into custody at proceedings
4 Determining appropriate levels of security for the purposes of paragraphs 1 2 and 3
In R v Campanella105 Ms Campanella was attending the John Sopinka Courthouse in
Hamilton At the courthouse there were signs posted stating that those who entered
would be searched for weapons When Ms Campanellarsquos bag was searched marijuana
was found and she was charged with the possession of marijuana She argued that her s
8 Charter protection against unreasonable search and seizure had been violated and the
marijuana discovered during the search should therefore be excluded as evidence The
trial judge and the summary convictions appeal court rejected the section 8 Charter
argument and the appellant appealed to the Ontario Court of Appeal
The Ontario Court of Appeal agreed that ldquogiven the importance of the government
objective and the context in which these searches take place it is reasonable to authorize
warrantless searches of those entering courthouse facilitiesrdquo106 The Court stated ldquothe
only effective way to diminish the risk in a large courthouse is to subject everyone
without prior security clearance to some kind of inspection I can see no other feasible
means of achieving the aimrdquo107
The Court also pointed out the concern relating to the erosion of the benefits and
105 [2002] OJ No 5104 (SCJ) affrsquod [2005] OJ No 1345 (CA) [ldquoCampanellardquo]106 R v Campanella [2005] OJ No 1345 at para 17 (CA)107 Ibid at para 19
46
protections conferred by s 8 of the Charter108
I am sensitive to the concern that we should not erode the benefits and protections of s 8 by gradually sanctioning ever-greater intrusions into privacy because of unfounded fears We should not lightly accept that searches in public places are justified solely because people have become used to them and expect them However the record in this case establishes the justification for the kinds of searches carried out in this case
Ultimately the appeal was dismissed and s 137 of the Police Services Act and s 3(b) of
the PWPA) were held to comply with s 8 of the Charter109
In its consultations with me the OBA similarly stated that the existing nature of court
security is necessary and is generally ldquowell toleratedrdquo At the same time however it
submits that the security regime should not be ldquoshoehornedrdquo into the PWPA regime and
that it would be preferable to provide a legislative framework tailored for the specific
security requirements While the PWPA has been relied upon as support for the exercise
of powers by the police in providing court security the OBA submits that the PWPArsquos
ldquosingle security schemerdquo which declares something a ldquopublic workrdquo is an ldquoawkward
blunt instrument in a world where more specialized tools are necessaryrdquo When
warrantless searches are being done on a routine basis it is advisable to have specific
legislation providing peace officers with such power
Recommendation
Court security legislation is currently in place in many jurisdictions across Canada and
contain provisions that permit warrantless searches of persons wanting to access a
108 Ibid at para 25109 The Court in R v SS [2005] OJ No 5002 (SCJ) agreed with the findings and rationale of the Court of Appeal in Campanella
47
courthouse The constitutional validity of such legislation in Manitoba was upheld by that
provincersquos highest court110
Given the ongoing need for warrantless searches at courthouses the Province of Ontario
should consider specific court security legislation in Ontario to support the security
measures in our courthouses if the PWPA is to be repealed taking into consideration the
responsibilities of the municipal police services boards provided in s 137 of the Police
Services Act This legislation should only be passed after proper notice consultation and
legislative debate
2 Power Generating Infrastructures
It is clear from the submissions that I received from representatives of OPG and the
Canadian Nuclear Safety Commission (ldquoCNSCrdquo) that the PWPA currently plays a role in
providing security officers with the powers to secure power generating infrastructures
including the ability to carry firearms and the ability to stop and require identification
from those in proximity to those nuclear plants
Security is of the utmost importance in protecting a nuclear power plant Members of the
public do not need to access a nuclear or similar power facility unless employed at the
facility or carrying out work for the facility111
The security of areas within nuclear power plants is governed by the Nuclear Security
110 R v Lindsay [2004] MJ No 380 (CA) 111 Though the discussion focuses on nuclear power plants I have been informed that other power generating infrastructures use the PWPA to designate their security officers as guards As a result if the PWPA is repealed it will be necessary to broaden the consultations in relation to these other power generating infrastructures
48
Regulations112 Every nuclear power plant must be located within a ldquoprotected areardquo113
This protected area is the area within a fenced perimeter which is alarmed and
continually patrolled This area must be equipped with devices that employ two
independent systems to detect intrusion into the area114 The Nuclear Security
Regulations also provide detailed specifications for the barrier which must enclose the
protected area115 In addition licensees must ldquoidentify all vital areas and implement
physical protection measures ndash including access control and measures designed to delay
unauthorized accessrdquo116
The Nuclear Security Regulations also provide detailed provisions regarding entry into
protected areas No person can ldquoenter a protected area without physical proof of the
recorded authorization of the licenseerdquo117 Further to this on entry into a protected area
ldquothat personrsquos identity shall be verified by two separate personnel identity verification
systems one of which is an access card reader and the other of which is a biometric
personnel identity verification devicerdquo118 Licensees must also ldquoensure that vehicle
portals are used for the entry and exit of land vehicles into and from a protected areardquo119
Physical protection measures are also required to reduce the chance of a forced land
vehicle entry into a protected area120
The power to conduct searches upon entry to a protected area is also provided by the
112 SOR2000-209 113 Ibid s 8114 Ibid s 11(a)(i)115 Ibid s 9116 Ibid s 141117 Ibid s 17(1)118 Ibid s 171119 Ibid s 91(1)120 Ibid s 91(4)
49
Nuclear Security Regulations Signs must be posted that are visible to people about to
enter the protected area stating that they must allow a nuclear security officer (ldquoNSOrdquo) to
ldquosearch them and everything in their possession including any land vehicle for weapons
and explosive substancesrdquo121 In addition when leaving the protected area people must
allow NSOs to ldquosearch them and everything in their possession including any land
vehicle for Category I II or III nuclear materialrdquo122 People are not permitted to enter or
leave a protected area unless these searches are carried out123 The Nuclear Security
Regulations provide for the method of search including ldquoa hand-held scanner a walk-
through scanner or any similar devicerdquo124 In addition if an NSO determines it
necessary a frisk search can be carried out by a person of the same sex125
I have been informed that the area outside of but adjacent to the ldquoprotected areardquo is
referred to as the ldquocontrolled areardquo This area includes roadways and waterways within
the nuclear facilityrsquos property boundaries adjacent to or in close proximity to the nuclear
power plantrsquos protected area and may be generally accessible to the public
As a result of the September 11 2001 terrorist attacks the Nuclear Security Regulations
were amended to require that high security nuclear facilities maintain an on-site armed
Nuclear Response Force (ldquoNRFrdquo)126 The NRF is composed of specialized NSOs
Section 32 of the Nuclear Security Regulations requires the NRF to be capable of making
an effective intervention taking into account the threat
121 Ibid s 27(1)(a)122 Ibid s 27(1)(b)123 Ibid s 27(2)124 Ibid s 27(5)(a)125 Ibid s 27(5)(b)126 Ibid s 32
50
Members of the NRF are mandated by the Nuclear Security Regulations to be ldquotrained in
the use of firearms authorized to carry firearms in Canada and qualified to use themrdquo127
However to satisfy this requirement the NRF resorts to the PWPA since the federal
regulations do not authorize the NRF to carry firearms without a licence However
under s 2(1) of the PWPA NSOs are designated as ldquoguardsrdquo with the powers of a peace
officer most significantly to carry and use firearms without having to be licensed128
Such a designation also enables the OPG to acquire and dispose of firearms
In the consultations I had with the OPG and the CNSC they advised me that NSOs
receive training equivalent to Canadian police standards and that NRF officers receive
training equivalent to federal and provincial police tactical team requirements
Another aspect of the PWPA used to secure nuclear power plants relates to powers
exercised by NSOs in ldquocontrolled areasrdquo The federal regulations do not provide the
NSOs with any power to demand identification within this area However pursuant to
the PWPA as appointed ldquoguardsrdquo the NSOs have the power to demand identity
verification in the controlled area They also have the authority to arrest anyone who
obstructs NSOs in the performance of their duties under the PWPA
In addition to using the PWPA to secure the controlled areas I have been advised by the
OPG that NSOs use powers pursuant to the PWPA to secure areas within 100 metres of a
nuclear facilityrsquos property line immediately adjacent to the controlled area These powers
are exercised under the broad language of the PWPA regarding ldquoapproaches to public
127 Ibid s 1 (on-site nuclear response force definition)128 Section 11707 of the Criminal Code exempts peace officers from licensing requirements for possessing firearms and other prohibited and restricted weapons
51
worksrdquo This is an illustration of the problem with the vagueness of this language in the
legislation As these powers are exercised on public land they could be challenged as a
potential infringement on individual rights and freedoms However I have been advised
that there have been no such incidents to date The need to ensure the security of these
facilities must be taken into the balance
NSOs must be able to monitor and control access to the controlled areas and areas close
to a nuclear power plantrsquos property line This provides for a more secure perimeter
around these facilities They need authority to challenge individuals acting in a suspicious
manner or conducting surveillance of nuclear facilities The OPG has informed me that
areas outside a nuclear facilityrsquos property line immediately adjacent to the controlled
area are still close enough to take advantage of the short distance to conduct intelligence
using high-powered surveillance equipment These nuclear power plants are not located
on isolated islands and are therefore vulnerable Both the Pickering Nuclear Generating
Station and the Darlington Nuclear Generating Station operate within major urban areas
being 30 km and 60 km east of downtown Toronto respectively I am advised that
previous events such as ldquoThe Toronto 18rdquo129 have shown that those intent on targeting
vital infrastructure such as power generating facilities often use reconnaissance and
intelligence gathering as precursor tactics
Recommendation
If the PWPA is to be repealed it is imperative that those who secure our nuclear and
power generating facilities be given the requisite specific legislative powers to do so
129 See for example ldquoLast 2 Toronto 18 accused found guiltyrdquo CBC News (23 June 2010) online cbcca lthttpwwwcbccanewscanadatorontostory20100623toronto-18-verdicthtmlgt
52
The source for these powers should be set out in the federal Nuclear Security
Regulations However if this is not a desired option the Government of Ontario must
consider specific legislation setting out the specific powers required to properly secure
these facilities and the specific location in which these powers can be exercised Such
legislation should not be passed without proper notice consultation and legislative
debate
53
SECTION 6 CONCLUSION
The PWPA was enacted in 1939 to support the war effort At the time the protection of
Ontariorsquos hydroelectric facilities from sabotage was of particular concern Since then the
PWPA has been used to provide the legal foundation for the powers exercised by the
police in providing court security and even more recently by the OPG in securing
nuclear power facilities In June 2010 the PWPA was used to provide powers to secure
intergovernmental conferences The vagueness of the PWPA permits it to be used in
situations when it is arguably not necessary and potentially abusive In my view the
PWPA has been used for purposes beyond its original intent
The time for the PWPA seems to have passed If the Government of Ontario enacts as I
have suggested specific legislation to provide for courthouse security and power
generating infrastructure security it would appear that there is no longer a need for the
PWPA I am also mindful of the existence of counter-terrorism and emergencies
legislation to deal with these situations as they arise
ldquoIn determining the boundaries of police powers caution is required to ensure the proper
balance between preventing excessive intrusions on an individualrsquos liberty and privacy
and enabling the police to do what is reasonably necessary to perform their duties in
protecting the publicrdquo130 The overly broad and vague language of the PWPA does not
strike this required balance with individual rights and freedoms
The late Justice Jackson of the United States Supreme Court stated that every
emergency power once conferred ldquolies about like a loaded weapon ready for the hand of
130 R v Clayton [2007] 2 SCR 725 at 742
54
any authority that can bring forward a plausible claim of an urgent needrdquo131 The need to
protect the public must be balanced with the requirement to preserve fundamental rights
and freedoms
Yet at the same time ldquoCanadians are entitled to demand the best public order policing
possible from their governmentrdquo132 There is no question that we live in a different world
post 911 We live in difficult times with constant threats both domestically and from
abroad The police clearly need to be given adequate powers to carry out their duties
The police use their expertise on a daily basis to assess the powers they require In
instances when they take action that exceeds their powers their actions are examined by
various mandated bodies This process I believe results in the proper balance between
police powers and individual rights and freedoms Therefore any legislation that purports
to grant special police powers must be specific and direct and developed in consultation
with stakeholders and tested through thorough debate in our transparent democratic
system
131 Korematsu v United States 323 US 214 (1944)132 Supra note 26 p 8
55
PWPA provides for a significant legal consequence if the demand or direction is not
followed since ldquoEvery person who neglects or refuses to comply with a request or
direction made under this Act by a guard or peace officer and every person found upon a
public work or any approach thereto without lawful authority the proof whereof lies on
him or her is guilty of an offence and on conviction is liable to a fine of not more than
$500 or to imprisonment for a term of not more than two months or to bothrdquo96
Pursuant to s 3(b) of the PWPA a guard or peace officer may search any person entering
or attempting to enter a public work These searches would necessitate the detention of a
person If a guard or peace officer performs such a search he or she has taken control
over the movement of the person by a demand or direction The same serious legal
consequence results from failing to obey this demand or direction as that which results
from failing to obey the demand or direction pursuant to s 3(a) of the PWPA As a
result ldquodetentionsrdquo could occur pursuant to both s 3(a) and s 3(b) of the PWPA
The question that would need to be addressed in any challenge to the PWPA is whether
the detentions permitted by the PWPA are arbitrary in nature The use of the term ldquoany
approach theretordquo is vague and imprecise A person could be deemed to be on ldquoany
approach theretordquo a great distance from the entrance of a public work and their detention
might very well be arbitrary In addition the fact that the guards and peace officers
determine the boundaries of the ldquoapproachesrdquo which cannot be contested seems
arbitrary as well as who they chose to search
96 It should be noted that not all communications with state authorities and police officers will amount to a detention The question is whether a person may reasonably believe that he or she is free to refuse to comply
41
Section 11(d) of the Charter provides that ldquoAny person charged with an offence has the
right to be presumed innocent until proven guilty according to law in a fair and public
hearing by an independent and impartial tribunalrdquo This requires that the Crown have the
burden of proving the guilt of an individual charged with an offence97 Provisions that
place the burden on the accused to disprove on the balance of probabilities an essential
element of an offence raises s 11(d) concerns because convictions would be possible
even if reasonable doubt existed98 The presumption of innocence is not only infringed
upon by a requirement that an accused disprove an essential element of an offence but
also any requirement on an accused to prove a fact on the balance of probabilities to
avoid conviction
Section 5(1) of the PWPA states that ldquoEvery person who neglects or refuses to comply
with a request or direction made under this Act by a guard or peace officer and every
person found upon a public work or any approach thereto without lawful authority the
proof whereof lies on him or her is guilty of an offence and on conviction is liable to a
fine of not more than $500 or to imprisonment for a term of not more than two months or
to bothrdquo For the offence of being found upon a public work or on any approach to a
public work without lawful authority the burden of proof has been ldquoshiftedrdquo from the
Crown to the accused to prove lawful authority
As the foregoing analysis reveals there are certainly many concerns that arise when one
places the PWPA under the lens of the Charter However the rights and freedoms
provided by the Charter are not absolute They are ldquosubject only to such reasonable
97 R v Oakes [1986] 1 SCR 10398 Ibid at 132
42
limits prescribed by law as can be demonstrably justified in a free and democratic
societyrdquo99
In assessing whether a law which infringes the Charter is saved by s 1 a court examines
both the object of the law and the measures taken to achieve that objective A lawrsquos
objective achieves the status of being sufficiently important to justify overriding a
Charter right only when it is consistent with the values of a free and democratic society
The objective must relate to pressing and substantial concerns and not concerns that are
trivial and must be focussed on ldquothe realization of collective goals of fundamental
importancerdquo100 The measures adopted must be ldquorationally connectedrdquo to the objective of
the law101 The measures ldquoshould impair lsquoas little as possiblersquo the right or freedom in
questionrdquo102 Furthermore there must be ldquoa proportionality between the effects of the
measures which are responsible for limiting the Charter right or freedom and the
objective which has been identified as of lsquosufficient importancersquordquo103
An issue that may affect whether the potential limitation on rights and freedoms of the
PWPA and O Reg 23310 were ldquoprescribed by lawrdquo is whether the regulation was
adequately accessible to the public The Ontario Ombudsman the CCLA and the Ontario
Bar Association (ldquoOBArdquo) all noted a lack of notice regarding O Reg 23310 and its
effects prior to and during the G20 While the text of the regulation was available prior
99 Charter s 1 The Superior Court of Quebec decision of Tremblay v Queacutebec (Attorney General) [2001] JQ No 1504 (CS) involved an interim injunction brought by an applicant who was denied entry into the secured perimeter during the 2001 Summit of the Americas in Queacutebec City The applicant sought an injunction to either eliminate the security barrier or to be given a pass to let him within the secured perimeter Even though the Court held that the erection of the security zone violated the applicantrsquos right to freedom of expression and peaceful assembly The court held that the infringement was ldquodemonstrably justified in a free and democratic societyrdquo100 Supra note 97 at 136101 Ibid at 139102 Ibid103 Ibid
43
to the G20 it was only available on a website not frequently accessed by the public
Since O Reg 23310 was not published in The Ontario Gazette until after it was
revoked it may be that the regulation was not adequately accessible to the public
Reverse onus offences have been found to be ldquorationally connectedrdquo when there is plainly
a rational connection between the proven fact and the fact to be presumed Reverse
onuses have also been upheld when the burden placed on the Crown would be virtually
impossible to meet (such as proving sanity)104 Even if the accused only has the burden
of disproving the fact that heshe did not have lawful authority to be in a public work or
on an approach thereto there may not be a rational connection between the proven fact
and the fact to be presumed
The history of threats and violence at previous intergovernmental conferences
demonstrated that the protection of G20 participants was a pressing and substantial
concern However given the broadness of the PWPA every exercise of it raises the
potential for Charter scrutiny
Recommendation
Given the public policy considerations I have raised regarding the PWPA and Charter
concerns that could arise I recommend that the PWPA be repealed after the Province has
considered potential policy and security gaps as a result of its repeal
B Other uses of the Public Works Protection Act
It appears from my consultations with stakeholder groups that if the PWPA is repealed
104 R v Chaulk [1990] 3 SCR 1303 at 1340
44
there are two areas which may require legislation to provide specific peace officer
powers These two areas are court security and the protection of nuclear power facilities
and other power generating infrastructures
1 Court Security
During my decade as Ontariorsquos Attorney General (1975 to 1985) there were three
murders in provincial courthouses as well as many threats to members of courthouse staff
and others As violent acts in courthouses can be anticipated courtroom security is often
required
Individuals are compelled to go to court for a variety of reasons such as appearing as an
accused as a witness or for jury duty To provide protection to those who work there or
are compelled to attend an adequate level of court security may require a search without
warrant of each and every individual who seeks to enter a courthouse It is not reasonable
to require prior judicial authorization for each search that takes place
The courts have considered the constitutionality of these provisions of the PWPA in
conjunction with section 137 of the Ontario Police Services Act in the context of court
security
Section 137 of the Ontario Police Services Act imposes a responsibility on municipal
police services boards to secure the premises where court proceedings are conducted and
includes
1 Ensuring the security of judges and of persons taking part in or attending proceedings
45
2 During the hours when judges and members of the public are normally present ensuring the security of the premises
3 Ensuring the secure custody of persons in custody who are on or about the premises including persons taken into custody at proceedings
4 Determining appropriate levels of security for the purposes of paragraphs 1 2 and 3
In R v Campanella105 Ms Campanella was attending the John Sopinka Courthouse in
Hamilton At the courthouse there were signs posted stating that those who entered
would be searched for weapons When Ms Campanellarsquos bag was searched marijuana
was found and she was charged with the possession of marijuana She argued that her s
8 Charter protection against unreasonable search and seizure had been violated and the
marijuana discovered during the search should therefore be excluded as evidence The
trial judge and the summary convictions appeal court rejected the section 8 Charter
argument and the appellant appealed to the Ontario Court of Appeal
The Ontario Court of Appeal agreed that ldquogiven the importance of the government
objective and the context in which these searches take place it is reasonable to authorize
warrantless searches of those entering courthouse facilitiesrdquo106 The Court stated ldquothe
only effective way to diminish the risk in a large courthouse is to subject everyone
without prior security clearance to some kind of inspection I can see no other feasible
means of achieving the aimrdquo107
The Court also pointed out the concern relating to the erosion of the benefits and
105 [2002] OJ No 5104 (SCJ) affrsquod [2005] OJ No 1345 (CA) [ldquoCampanellardquo]106 R v Campanella [2005] OJ No 1345 at para 17 (CA)107 Ibid at para 19
46
protections conferred by s 8 of the Charter108
I am sensitive to the concern that we should not erode the benefits and protections of s 8 by gradually sanctioning ever-greater intrusions into privacy because of unfounded fears We should not lightly accept that searches in public places are justified solely because people have become used to them and expect them However the record in this case establishes the justification for the kinds of searches carried out in this case
Ultimately the appeal was dismissed and s 137 of the Police Services Act and s 3(b) of
the PWPA) were held to comply with s 8 of the Charter109
In its consultations with me the OBA similarly stated that the existing nature of court
security is necessary and is generally ldquowell toleratedrdquo At the same time however it
submits that the security regime should not be ldquoshoehornedrdquo into the PWPA regime and
that it would be preferable to provide a legislative framework tailored for the specific
security requirements While the PWPA has been relied upon as support for the exercise
of powers by the police in providing court security the OBA submits that the PWPArsquos
ldquosingle security schemerdquo which declares something a ldquopublic workrdquo is an ldquoawkward
blunt instrument in a world where more specialized tools are necessaryrdquo When
warrantless searches are being done on a routine basis it is advisable to have specific
legislation providing peace officers with such power
Recommendation
Court security legislation is currently in place in many jurisdictions across Canada and
contain provisions that permit warrantless searches of persons wanting to access a
108 Ibid at para 25109 The Court in R v SS [2005] OJ No 5002 (SCJ) agreed with the findings and rationale of the Court of Appeal in Campanella
47
courthouse The constitutional validity of such legislation in Manitoba was upheld by that
provincersquos highest court110
Given the ongoing need for warrantless searches at courthouses the Province of Ontario
should consider specific court security legislation in Ontario to support the security
measures in our courthouses if the PWPA is to be repealed taking into consideration the
responsibilities of the municipal police services boards provided in s 137 of the Police
Services Act This legislation should only be passed after proper notice consultation and
legislative debate
2 Power Generating Infrastructures
It is clear from the submissions that I received from representatives of OPG and the
Canadian Nuclear Safety Commission (ldquoCNSCrdquo) that the PWPA currently plays a role in
providing security officers with the powers to secure power generating infrastructures
including the ability to carry firearms and the ability to stop and require identification
from those in proximity to those nuclear plants
Security is of the utmost importance in protecting a nuclear power plant Members of the
public do not need to access a nuclear or similar power facility unless employed at the
facility or carrying out work for the facility111
The security of areas within nuclear power plants is governed by the Nuclear Security
110 R v Lindsay [2004] MJ No 380 (CA) 111 Though the discussion focuses on nuclear power plants I have been informed that other power generating infrastructures use the PWPA to designate their security officers as guards As a result if the PWPA is repealed it will be necessary to broaden the consultations in relation to these other power generating infrastructures
48
Regulations112 Every nuclear power plant must be located within a ldquoprotected areardquo113
This protected area is the area within a fenced perimeter which is alarmed and
continually patrolled This area must be equipped with devices that employ two
independent systems to detect intrusion into the area114 The Nuclear Security
Regulations also provide detailed specifications for the barrier which must enclose the
protected area115 In addition licensees must ldquoidentify all vital areas and implement
physical protection measures ndash including access control and measures designed to delay
unauthorized accessrdquo116
The Nuclear Security Regulations also provide detailed provisions regarding entry into
protected areas No person can ldquoenter a protected area without physical proof of the
recorded authorization of the licenseerdquo117 Further to this on entry into a protected area
ldquothat personrsquos identity shall be verified by two separate personnel identity verification
systems one of which is an access card reader and the other of which is a biometric
personnel identity verification devicerdquo118 Licensees must also ldquoensure that vehicle
portals are used for the entry and exit of land vehicles into and from a protected areardquo119
Physical protection measures are also required to reduce the chance of a forced land
vehicle entry into a protected area120
The power to conduct searches upon entry to a protected area is also provided by the
112 SOR2000-209 113 Ibid s 8114 Ibid s 11(a)(i)115 Ibid s 9116 Ibid s 141117 Ibid s 17(1)118 Ibid s 171119 Ibid s 91(1)120 Ibid s 91(4)
49
Nuclear Security Regulations Signs must be posted that are visible to people about to
enter the protected area stating that they must allow a nuclear security officer (ldquoNSOrdquo) to
ldquosearch them and everything in their possession including any land vehicle for weapons
and explosive substancesrdquo121 In addition when leaving the protected area people must
allow NSOs to ldquosearch them and everything in their possession including any land
vehicle for Category I II or III nuclear materialrdquo122 People are not permitted to enter or
leave a protected area unless these searches are carried out123 The Nuclear Security
Regulations provide for the method of search including ldquoa hand-held scanner a walk-
through scanner or any similar devicerdquo124 In addition if an NSO determines it
necessary a frisk search can be carried out by a person of the same sex125
I have been informed that the area outside of but adjacent to the ldquoprotected areardquo is
referred to as the ldquocontrolled areardquo This area includes roadways and waterways within
the nuclear facilityrsquos property boundaries adjacent to or in close proximity to the nuclear
power plantrsquos protected area and may be generally accessible to the public
As a result of the September 11 2001 terrorist attacks the Nuclear Security Regulations
were amended to require that high security nuclear facilities maintain an on-site armed
Nuclear Response Force (ldquoNRFrdquo)126 The NRF is composed of specialized NSOs
Section 32 of the Nuclear Security Regulations requires the NRF to be capable of making
an effective intervention taking into account the threat
121 Ibid s 27(1)(a)122 Ibid s 27(1)(b)123 Ibid s 27(2)124 Ibid s 27(5)(a)125 Ibid s 27(5)(b)126 Ibid s 32
50
Members of the NRF are mandated by the Nuclear Security Regulations to be ldquotrained in
the use of firearms authorized to carry firearms in Canada and qualified to use themrdquo127
However to satisfy this requirement the NRF resorts to the PWPA since the federal
regulations do not authorize the NRF to carry firearms without a licence However
under s 2(1) of the PWPA NSOs are designated as ldquoguardsrdquo with the powers of a peace
officer most significantly to carry and use firearms without having to be licensed128
Such a designation also enables the OPG to acquire and dispose of firearms
In the consultations I had with the OPG and the CNSC they advised me that NSOs
receive training equivalent to Canadian police standards and that NRF officers receive
training equivalent to federal and provincial police tactical team requirements
Another aspect of the PWPA used to secure nuclear power plants relates to powers
exercised by NSOs in ldquocontrolled areasrdquo The federal regulations do not provide the
NSOs with any power to demand identification within this area However pursuant to
the PWPA as appointed ldquoguardsrdquo the NSOs have the power to demand identity
verification in the controlled area They also have the authority to arrest anyone who
obstructs NSOs in the performance of their duties under the PWPA
In addition to using the PWPA to secure the controlled areas I have been advised by the
OPG that NSOs use powers pursuant to the PWPA to secure areas within 100 metres of a
nuclear facilityrsquos property line immediately adjacent to the controlled area These powers
are exercised under the broad language of the PWPA regarding ldquoapproaches to public
127 Ibid s 1 (on-site nuclear response force definition)128 Section 11707 of the Criminal Code exempts peace officers from licensing requirements for possessing firearms and other prohibited and restricted weapons
51
worksrdquo This is an illustration of the problem with the vagueness of this language in the
legislation As these powers are exercised on public land they could be challenged as a
potential infringement on individual rights and freedoms However I have been advised
that there have been no such incidents to date The need to ensure the security of these
facilities must be taken into the balance
NSOs must be able to monitor and control access to the controlled areas and areas close
to a nuclear power plantrsquos property line This provides for a more secure perimeter
around these facilities They need authority to challenge individuals acting in a suspicious
manner or conducting surveillance of nuclear facilities The OPG has informed me that
areas outside a nuclear facilityrsquos property line immediately adjacent to the controlled
area are still close enough to take advantage of the short distance to conduct intelligence
using high-powered surveillance equipment These nuclear power plants are not located
on isolated islands and are therefore vulnerable Both the Pickering Nuclear Generating
Station and the Darlington Nuclear Generating Station operate within major urban areas
being 30 km and 60 km east of downtown Toronto respectively I am advised that
previous events such as ldquoThe Toronto 18rdquo129 have shown that those intent on targeting
vital infrastructure such as power generating facilities often use reconnaissance and
intelligence gathering as precursor tactics
Recommendation
If the PWPA is to be repealed it is imperative that those who secure our nuclear and
power generating facilities be given the requisite specific legislative powers to do so
129 See for example ldquoLast 2 Toronto 18 accused found guiltyrdquo CBC News (23 June 2010) online cbcca lthttpwwwcbccanewscanadatorontostory20100623toronto-18-verdicthtmlgt
52
The source for these powers should be set out in the federal Nuclear Security
Regulations However if this is not a desired option the Government of Ontario must
consider specific legislation setting out the specific powers required to properly secure
these facilities and the specific location in which these powers can be exercised Such
legislation should not be passed without proper notice consultation and legislative
debate
53
SECTION 6 CONCLUSION
The PWPA was enacted in 1939 to support the war effort At the time the protection of
Ontariorsquos hydroelectric facilities from sabotage was of particular concern Since then the
PWPA has been used to provide the legal foundation for the powers exercised by the
police in providing court security and even more recently by the OPG in securing
nuclear power facilities In June 2010 the PWPA was used to provide powers to secure
intergovernmental conferences The vagueness of the PWPA permits it to be used in
situations when it is arguably not necessary and potentially abusive In my view the
PWPA has been used for purposes beyond its original intent
The time for the PWPA seems to have passed If the Government of Ontario enacts as I
have suggested specific legislation to provide for courthouse security and power
generating infrastructure security it would appear that there is no longer a need for the
PWPA I am also mindful of the existence of counter-terrorism and emergencies
legislation to deal with these situations as they arise
ldquoIn determining the boundaries of police powers caution is required to ensure the proper
balance between preventing excessive intrusions on an individualrsquos liberty and privacy
and enabling the police to do what is reasonably necessary to perform their duties in
protecting the publicrdquo130 The overly broad and vague language of the PWPA does not
strike this required balance with individual rights and freedoms
The late Justice Jackson of the United States Supreme Court stated that every
emergency power once conferred ldquolies about like a loaded weapon ready for the hand of
130 R v Clayton [2007] 2 SCR 725 at 742
54
any authority that can bring forward a plausible claim of an urgent needrdquo131 The need to
protect the public must be balanced with the requirement to preserve fundamental rights
and freedoms
Yet at the same time ldquoCanadians are entitled to demand the best public order policing
possible from their governmentrdquo132 There is no question that we live in a different world
post 911 We live in difficult times with constant threats both domestically and from
abroad The police clearly need to be given adequate powers to carry out their duties
The police use their expertise on a daily basis to assess the powers they require In
instances when they take action that exceeds their powers their actions are examined by
various mandated bodies This process I believe results in the proper balance between
police powers and individual rights and freedoms Therefore any legislation that purports
to grant special police powers must be specific and direct and developed in consultation
with stakeholders and tested through thorough debate in our transparent democratic
system
131 Korematsu v United States 323 US 214 (1944)132 Supra note 26 p 8
55
Section 11(d) of the Charter provides that ldquoAny person charged with an offence has the
right to be presumed innocent until proven guilty according to law in a fair and public
hearing by an independent and impartial tribunalrdquo This requires that the Crown have the
burden of proving the guilt of an individual charged with an offence97 Provisions that
place the burden on the accused to disprove on the balance of probabilities an essential
element of an offence raises s 11(d) concerns because convictions would be possible
even if reasonable doubt existed98 The presumption of innocence is not only infringed
upon by a requirement that an accused disprove an essential element of an offence but
also any requirement on an accused to prove a fact on the balance of probabilities to
avoid conviction
Section 5(1) of the PWPA states that ldquoEvery person who neglects or refuses to comply
with a request or direction made under this Act by a guard or peace officer and every
person found upon a public work or any approach thereto without lawful authority the
proof whereof lies on him or her is guilty of an offence and on conviction is liable to a
fine of not more than $500 or to imprisonment for a term of not more than two months or
to bothrdquo For the offence of being found upon a public work or on any approach to a
public work without lawful authority the burden of proof has been ldquoshiftedrdquo from the
Crown to the accused to prove lawful authority
As the foregoing analysis reveals there are certainly many concerns that arise when one
places the PWPA under the lens of the Charter However the rights and freedoms
provided by the Charter are not absolute They are ldquosubject only to such reasonable
97 R v Oakes [1986] 1 SCR 10398 Ibid at 132
42
limits prescribed by law as can be demonstrably justified in a free and democratic
societyrdquo99
In assessing whether a law which infringes the Charter is saved by s 1 a court examines
both the object of the law and the measures taken to achieve that objective A lawrsquos
objective achieves the status of being sufficiently important to justify overriding a
Charter right only when it is consistent with the values of a free and democratic society
The objective must relate to pressing and substantial concerns and not concerns that are
trivial and must be focussed on ldquothe realization of collective goals of fundamental
importancerdquo100 The measures adopted must be ldquorationally connectedrdquo to the objective of
the law101 The measures ldquoshould impair lsquoas little as possiblersquo the right or freedom in
questionrdquo102 Furthermore there must be ldquoa proportionality between the effects of the
measures which are responsible for limiting the Charter right or freedom and the
objective which has been identified as of lsquosufficient importancersquordquo103
An issue that may affect whether the potential limitation on rights and freedoms of the
PWPA and O Reg 23310 were ldquoprescribed by lawrdquo is whether the regulation was
adequately accessible to the public The Ontario Ombudsman the CCLA and the Ontario
Bar Association (ldquoOBArdquo) all noted a lack of notice regarding O Reg 23310 and its
effects prior to and during the G20 While the text of the regulation was available prior
99 Charter s 1 The Superior Court of Quebec decision of Tremblay v Queacutebec (Attorney General) [2001] JQ No 1504 (CS) involved an interim injunction brought by an applicant who was denied entry into the secured perimeter during the 2001 Summit of the Americas in Queacutebec City The applicant sought an injunction to either eliminate the security barrier or to be given a pass to let him within the secured perimeter Even though the Court held that the erection of the security zone violated the applicantrsquos right to freedom of expression and peaceful assembly The court held that the infringement was ldquodemonstrably justified in a free and democratic societyrdquo100 Supra note 97 at 136101 Ibid at 139102 Ibid103 Ibid
43
to the G20 it was only available on a website not frequently accessed by the public
Since O Reg 23310 was not published in The Ontario Gazette until after it was
revoked it may be that the regulation was not adequately accessible to the public
Reverse onus offences have been found to be ldquorationally connectedrdquo when there is plainly
a rational connection between the proven fact and the fact to be presumed Reverse
onuses have also been upheld when the burden placed on the Crown would be virtually
impossible to meet (such as proving sanity)104 Even if the accused only has the burden
of disproving the fact that heshe did not have lawful authority to be in a public work or
on an approach thereto there may not be a rational connection between the proven fact
and the fact to be presumed
The history of threats and violence at previous intergovernmental conferences
demonstrated that the protection of G20 participants was a pressing and substantial
concern However given the broadness of the PWPA every exercise of it raises the
potential for Charter scrutiny
Recommendation
Given the public policy considerations I have raised regarding the PWPA and Charter
concerns that could arise I recommend that the PWPA be repealed after the Province has
considered potential policy and security gaps as a result of its repeal
B Other uses of the Public Works Protection Act
It appears from my consultations with stakeholder groups that if the PWPA is repealed
104 R v Chaulk [1990] 3 SCR 1303 at 1340
44
there are two areas which may require legislation to provide specific peace officer
powers These two areas are court security and the protection of nuclear power facilities
and other power generating infrastructures
1 Court Security
During my decade as Ontariorsquos Attorney General (1975 to 1985) there were three
murders in provincial courthouses as well as many threats to members of courthouse staff
and others As violent acts in courthouses can be anticipated courtroom security is often
required
Individuals are compelled to go to court for a variety of reasons such as appearing as an
accused as a witness or for jury duty To provide protection to those who work there or
are compelled to attend an adequate level of court security may require a search without
warrant of each and every individual who seeks to enter a courthouse It is not reasonable
to require prior judicial authorization for each search that takes place
The courts have considered the constitutionality of these provisions of the PWPA in
conjunction with section 137 of the Ontario Police Services Act in the context of court
security
Section 137 of the Ontario Police Services Act imposes a responsibility on municipal
police services boards to secure the premises where court proceedings are conducted and
includes
1 Ensuring the security of judges and of persons taking part in or attending proceedings
45
2 During the hours when judges and members of the public are normally present ensuring the security of the premises
3 Ensuring the secure custody of persons in custody who are on or about the premises including persons taken into custody at proceedings
4 Determining appropriate levels of security for the purposes of paragraphs 1 2 and 3
In R v Campanella105 Ms Campanella was attending the John Sopinka Courthouse in
Hamilton At the courthouse there were signs posted stating that those who entered
would be searched for weapons When Ms Campanellarsquos bag was searched marijuana
was found and she was charged with the possession of marijuana She argued that her s
8 Charter protection against unreasonable search and seizure had been violated and the
marijuana discovered during the search should therefore be excluded as evidence The
trial judge and the summary convictions appeal court rejected the section 8 Charter
argument and the appellant appealed to the Ontario Court of Appeal
The Ontario Court of Appeal agreed that ldquogiven the importance of the government
objective and the context in which these searches take place it is reasonable to authorize
warrantless searches of those entering courthouse facilitiesrdquo106 The Court stated ldquothe
only effective way to diminish the risk in a large courthouse is to subject everyone
without prior security clearance to some kind of inspection I can see no other feasible
means of achieving the aimrdquo107
The Court also pointed out the concern relating to the erosion of the benefits and
105 [2002] OJ No 5104 (SCJ) affrsquod [2005] OJ No 1345 (CA) [ldquoCampanellardquo]106 R v Campanella [2005] OJ No 1345 at para 17 (CA)107 Ibid at para 19
46
protections conferred by s 8 of the Charter108
I am sensitive to the concern that we should not erode the benefits and protections of s 8 by gradually sanctioning ever-greater intrusions into privacy because of unfounded fears We should not lightly accept that searches in public places are justified solely because people have become used to them and expect them However the record in this case establishes the justification for the kinds of searches carried out in this case
Ultimately the appeal was dismissed and s 137 of the Police Services Act and s 3(b) of
the PWPA) were held to comply with s 8 of the Charter109
In its consultations with me the OBA similarly stated that the existing nature of court
security is necessary and is generally ldquowell toleratedrdquo At the same time however it
submits that the security regime should not be ldquoshoehornedrdquo into the PWPA regime and
that it would be preferable to provide a legislative framework tailored for the specific
security requirements While the PWPA has been relied upon as support for the exercise
of powers by the police in providing court security the OBA submits that the PWPArsquos
ldquosingle security schemerdquo which declares something a ldquopublic workrdquo is an ldquoawkward
blunt instrument in a world where more specialized tools are necessaryrdquo When
warrantless searches are being done on a routine basis it is advisable to have specific
legislation providing peace officers with such power
Recommendation
Court security legislation is currently in place in many jurisdictions across Canada and
contain provisions that permit warrantless searches of persons wanting to access a
108 Ibid at para 25109 The Court in R v SS [2005] OJ No 5002 (SCJ) agreed with the findings and rationale of the Court of Appeal in Campanella
47
courthouse The constitutional validity of such legislation in Manitoba was upheld by that
provincersquos highest court110
Given the ongoing need for warrantless searches at courthouses the Province of Ontario
should consider specific court security legislation in Ontario to support the security
measures in our courthouses if the PWPA is to be repealed taking into consideration the
responsibilities of the municipal police services boards provided in s 137 of the Police
Services Act This legislation should only be passed after proper notice consultation and
legislative debate
2 Power Generating Infrastructures
It is clear from the submissions that I received from representatives of OPG and the
Canadian Nuclear Safety Commission (ldquoCNSCrdquo) that the PWPA currently plays a role in
providing security officers with the powers to secure power generating infrastructures
including the ability to carry firearms and the ability to stop and require identification
from those in proximity to those nuclear plants
Security is of the utmost importance in protecting a nuclear power plant Members of the
public do not need to access a nuclear or similar power facility unless employed at the
facility or carrying out work for the facility111
The security of areas within nuclear power plants is governed by the Nuclear Security
110 R v Lindsay [2004] MJ No 380 (CA) 111 Though the discussion focuses on nuclear power plants I have been informed that other power generating infrastructures use the PWPA to designate their security officers as guards As a result if the PWPA is repealed it will be necessary to broaden the consultations in relation to these other power generating infrastructures
48
Regulations112 Every nuclear power plant must be located within a ldquoprotected areardquo113
This protected area is the area within a fenced perimeter which is alarmed and
continually patrolled This area must be equipped with devices that employ two
independent systems to detect intrusion into the area114 The Nuclear Security
Regulations also provide detailed specifications for the barrier which must enclose the
protected area115 In addition licensees must ldquoidentify all vital areas and implement
physical protection measures ndash including access control and measures designed to delay
unauthorized accessrdquo116
The Nuclear Security Regulations also provide detailed provisions regarding entry into
protected areas No person can ldquoenter a protected area without physical proof of the
recorded authorization of the licenseerdquo117 Further to this on entry into a protected area
ldquothat personrsquos identity shall be verified by two separate personnel identity verification
systems one of which is an access card reader and the other of which is a biometric
personnel identity verification devicerdquo118 Licensees must also ldquoensure that vehicle
portals are used for the entry and exit of land vehicles into and from a protected areardquo119
Physical protection measures are also required to reduce the chance of a forced land
vehicle entry into a protected area120
The power to conduct searches upon entry to a protected area is also provided by the
112 SOR2000-209 113 Ibid s 8114 Ibid s 11(a)(i)115 Ibid s 9116 Ibid s 141117 Ibid s 17(1)118 Ibid s 171119 Ibid s 91(1)120 Ibid s 91(4)
49
Nuclear Security Regulations Signs must be posted that are visible to people about to
enter the protected area stating that they must allow a nuclear security officer (ldquoNSOrdquo) to
ldquosearch them and everything in their possession including any land vehicle for weapons
and explosive substancesrdquo121 In addition when leaving the protected area people must
allow NSOs to ldquosearch them and everything in their possession including any land
vehicle for Category I II or III nuclear materialrdquo122 People are not permitted to enter or
leave a protected area unless these searches are carried out123 The Nuclear Security
Regulations provide for the method of search including ldquoa hand-held scanner a walk-
through scanner or any similar devicerdquo124 In addition if an NSO determines it
necessary a frisk search can be carried out by a person of the same sex125
I have been informed that the area outside of but adjacent to the ldquoprotected areardquo is
referred to as the ldquocontrolled areardquo This area includes roadways and waterways within
the nuclear facilityrsquos property boundaries adjacent to or in close proximity to the nuclear
power plantrsquos protected area and may be generally accessible to the public
As a result of the September 11 2001 terrorist attacks the Nuclear Security Regulations
were amended to require that high security nuclear facilities maintain an on-site armed
Nuclear Response Force (ldquoNRFrdquo)126 The NRF is composed of specialized NSOs
Section 32 of the Nuclear Security Regulations requires the NRF to be capable of making
an effective intervention taking into account the threat
121 Ibid s 27(1)(a)122 Ibid s 27(1)(b)123 Ibid s 27(2)124 Ibid s 27(5)(a)125 Ibid s 27(5)(b)126 Ibid s 32
50
Members of the NRF are mandated by the Nuclear Security Regulations to be ldquotrained in
the use of firearms authorized to carry firearms in Canada and qualified to use themrdquo127
However to satisfy this requirement the NRF resorts to the PWPA since the federal
regulations do not authorize the NRF to carry firearms without a licence However
under s 2(1) of the PWPA NSOs are designated as ldquoguardsrdquo with the powers of a peace
officer most significantly to carry and use firearms without having to be licensed128
Such a designation also enables the OPG to acquire and dispose of firearms
In the consultations I had with the OPG and the CNSC they advised me that NSOs
receive training equivalent to Canadian police standards and that NRF officers receive
training equivalent to federal and provincial police tactical team requirements
Another aspect of the PWPA used to secure nuclear power plants relates to powers
exercised by NSOs in ldquocontrolled areasrdquo The federal regulations do not provide the
NSOs with any power to demand identification within this area However pursuant to
the PWPA as appointed ldquoguardsrdquo the NSOs have the power to demand identity
verification in the controlled area They also have the authority to arrest anyone who
obstructs NSOs in the performance of their duties under the PWPA
In addition to using the PWPA to secure the controlled areas I have been advised by the
OPG that NSOs use powers pursuant to the PWPA to secure areas within 100 metres of a
nuclear facilityrsquos property line immediately adjacent to the controlled area These powers
are exercised under the broad language of the PWPA regarding ldquoapproaches to public
127 Ibid s 1 (on-site nuclear response force definition)128 Section 11707 of the Criminal Code exempts peace officers from licensing requirements for possessing firearms and other prohibited and restricted weapons
51
worksrdquo This is an illustration of the problem with the vagueness of this language in the
legislation As these powers are exercised on public land they could be challenged as a
potential infringement on individual rights and freedoms However I have been advised
that there have been no such incidents to date The need to ensure the security of these
facilities must be taken into the balance
NSOs must be able to monitor and control access to the controlled areas and areas close
to a nuclear power plantrsquos property line This provides for a more secure perimeter
around these facilities They need authority to challenge individuals acting in a suspicious
manner or conducting surveillance of nuclear facilities The OPG has informed me that
areas outside a nuclear facilityrsquos property line immediately adjacent to the controlled
area are still close enough to take advantage of the short distance to conduct intelligence
using high-powered surveillance equipment These nuclear power plants are not located
on isolated islands and are therefore vulnerable Both the Pickering Nuclear Generating
Station and the Darlington Nuclear Generating Station operate within major urban areas
being 30 km and 60 km east of downtown Toronto respectively I am advised that
previous events such as ldquoThe Toronto 18rdquo129 have shown that those intent on targeting
vital infrastructure such as power generating facilities often use reconnaissance and
intelligence gathering as precursor tactics
Recommendation
If the PWPA is to be repealed it is imperative that those who secure our nuclear and
power generating facilities be given the requisite specific legislative powers to do so
129 See for example ldquoLast 2 Toronto 18 accused found guiltyrdquo CBC News (23 June 2010) online cbcca lthttpwwwcbccanewscanadatorontostory20100623toronto-18-verdicthtmlgt
52
The source for these powers should be set out in the federal Nuclear Security
Regulations However if this is not a desired option the Government of Ontario must
consider specific legislation setting out the specific powers required to properly secure
these facilities and the specific location in which these powers can be exercised Such
legislation should not be passed without proper notice consultation and legislative
debate
53
SECTION 6 CONCLUSION
The PWPA was enacted in 1939 to support the war effort At the time the protection of
Ontariorsquos hydroelectric facilities from sabotage was of particular concern Since then the
PWPA has been used to provide the legal foundation for the powers exercised by the
police in providing court security and even more recently by the OPG in securing
nuclear power facilities In June 2010 the PWPA was used to provide powers to secure
intergovernmental conferences The vagueness of the PWPA permits it to be used in
situations when it is arguably not necessary and potentially abusive In my view the
PWPA has been used for purposes beyond its original intent
The time for the PWPA seems to have passed If the Government of Ontario enacts as I
have suggested specific legislation to provide for courthouse security and power
generating infrastructure security it would appear that there is no longer a need for the
PWPA I am also mindful of the existence of counter-terrorism and emergencies
legislation to deal with these situations as they arise
ldquoIn determining the boundaries of police powers caution is required to ensure the proper
balance between preventing excessive intrusions on an individualrsquos liberty and privacy
and enabling the police to do what is reasonably necessary to perform their duties in
protecting the publicrdquo130 The overly broad and vague language of the PWPA does not
strike this required balance with individual rights and freedoms
The late Justice Jackson of the United States Supreme Court stated that every
emergency power once conferred ldquolies about like a loaded weapon ready for the hand of
130 R v Clayton [2007] 2 SCR 725 at 742
54
any authority that can bring forward a plausible claim of an urgent needrdquo131 The need to
protect the public must be balanced with the requirement to preserve fundamental rights
and freedoms
Yet at the same time ldquoCanadians are entitled to demand the best public order policing
possible from their governmentrdquo132 There is no question that we live in a different world
post 911 We live in difficult times with constant threats both domestically and from
abroad The police clearly need to be given adequate powers to carry out their duties
The police use their expertise on a daily basis to assess the powers they require In
instances when they take action that exceeds their powers their actions are examined by
various mandated bodies This process I believe results in the proper balance between
police powers and individual rights and freedoms Therefore any legislation that purports
to grant special police powers must be specific and direct and developed in consultation
with stakeholders and tested through thorough debate in our transparent democratic
system
131 Korematsu v United States 323 US 214 (1944)132 Supra note 26 p 8
55
limits prescribed by law as can be demonstrably justified in a free and democratic
societyrdquo99
In assessing whether a law which infringes the Charter is saved by s 1 a court examines
both the object of the law and the measures taken to achieve that objective A lawrsquos
objective achieves the status of being sufficiently important to justify overriding a
Charter right only when it is consistent with the values of a free and democratic society
The objective must relate to pressing and substantial concerns and not concerns that are
trivial and must be focussed on ldquothe realization of collective goals of fundamental
importancerdquo100 The measures adopted must be ldquorationally connectedrdquo to the objective of
the law101 The measures ldquoshould impair lsquoas little as possiblersquo the right or freedom in
questionrdquo102 Furthermore there must be ldquoa proportionality between the effects of the
measures which are responsible for limiting the Charter right or freedom and the
objective which has been identified as of lsquosufficient importancersquordquo103
An issue that may affect whether the potential limitation on rights and freedoms of the
PWPA and O Reg 23310 were ldquoprescribed by lawrdquo is whether the regulation was
adequately accessible to the public The Ontario Ombudsman the CCLA and the Ontario
Bar Association (ldquoOBArdquo) all noted a lack of notice regarding O Reg 23310 and its
effects prior to and during the G20 While the text of the regulation was available prior
99 Charter s 1 The Superior Court of Quebec decision of Tremblay v Queacutebec (Attorney General) [2001] JQ No 1504 (CS) involved an interim injunction brought by an applicant who was denied entry into the secured perimeter during the 2001 Summit of the Americas in Queacutebec City The applicant sought an injunction to either eliminate the security barrier or to be given a pass to let him within the secured perimeter Even though the Court held that the erection of the security zone violated the applicantrsquos right to freedom of expression and peaceful assembly The court held that the infringement was ldquodemonstrably justified in a free and democratic societyrdquo100 Supra note 97 at 136101 Ibid at 139102 Ibid103 Ibid
43
to the G20 it was only available on a website not frequently accessed by the public
Since O Reg 23310 was not published in The Ontario Gazette until after it was
revoked it may be that the regulation was not adequately accessible to the public
Reverse onus offences have been found to be ldquorationally connectedrdquo when there is plainly
a rational connection between the proven fact and the fact to be presumed Reverse
onuses have also been upheld when the burden placed on the Crown would be virtually
impossible to meet (such as proving sanity)104 Even if the accused only has the burden
of disproving the fact that heshe did not have lawful authority to be in a public work or
on an approach thereto there may not be a rational connection between the proven fact
and the fact to be presumed
The history of threats and violence at previous intergovernmental conferences
demonstrated that the protection of G20 participants was a pressing and substantial
concern However given the broadness of the PWPA every exercise of it raises the
potential for Charter scrutiny
Recommendation
Given the public policy considerations I have raised regarding the PWPA and Charter
concerns that could arise I recommend that the PWPA be repealed after the Province has
considered potential policy and security gaps as a result of its repeal
B Other uses of the Public Works Protection Act
It appears from my consultations with stakeholder groups that if the PWPA is repealed
104 R v Chaulk [1990] 3 SCR 1303 at 1340
44
there are two areas which may require legislation to provide specific peace officer
powers These two areas are court security and the protection of nuclear power facilities
and other power generating infrastructures
1 Court Security
During my decade as Ontariorsquos Attorney General (1975 to 1985) there were three
murders in provincial courthouses as well as many threats to members of courthouse staff
and others As violent acts in courthouses can be anticipated courtroom security is often
required
Individuals are compelled to go to court for a variety of reasons such as appearing as an
accused as a witness or for jury duty To provide protection to those who work there or
are compelled to attend an adequate level of court security may require a search without
warrant of each and every individual who seeks to enter a courthouse It is not reasonable
to require prior judicial authorization for each search that takes place
The courts have considered the constitutionality of these provisions of the PWPA in
conjunction with section 137 of the Ontario Police Services Act in the context of court
security
Section 137 of the Ontario Police Services Act imposes a responsibility on municipal
police services boards to secure the premises where court proceedings are conducted and
includes
1 Ensuring the security of judges and of persons taking part in or attending proceedings
45
2 During the hours when judges and members of the public are normally present ensuring the security of the premises
3 Ensuring the secure custody of persons in custody who are on or about the premises including persons taken into custody at proceedings
4 Determining appropriate levels of security for the purposes of paragraphs 1 2 and 3
In R v Campanella105 Ms Campanella was attending the John Sopinka Courthouse in
Hamilton At the courthouse there were signs posted stating that those who entered
would be searched for weapons When Ms Campanellarsquos bag was searched marijuana
was found and she was charged with the possession of marijuana She argued that her s
8 Charter protection against unreasonable search and seizure had been violated and the
marijuana discovered during the search should therefore be excluded as evidence The
trial judge and the summary convictions appeal court rejected the section 8 Charter
argument and the appellant appealed to the Ontario Court of Appeal
The Ontario Court of Appeal agreed that ldquogiven the importance of the government
objective and the context in which these searches take place it is reasonable to authorize
warrantless searches of those entering courthouse facilitiesrdquo106 The Court stated ldquothe
only effective way to diminish the risk in a large courthouse is to subject everyone
without prior security clearance to some kind of inspection I can see no other feasible
means of achieving the aimrdquo107
The Court also pointed out the concern relating to the erosion of the benefits and
105 [2002] OJ No 5104 (SCJ) affrsquod [2005] OJ No 1345 (CA) [ldquoCampanellardquo]106 R v Campanella [2005] OJ No 1345 at para 17 (CA)107 Ibid at para 19
46
protections conferred by s 8 of the Charter108
I am sensitive to the concern that we should not erode the benefits and protections of s 8 by gradually sanctioning ever-greater intrusions into privacy because of unfounded fears We should not lightly accept that searches in public places are justified solely because people have become used to them and expect them However the record in this case establishes the justification for the kinds of searches carried out in this case
Ultimately the appeal was dismissed and s 137 of the Police Services Act and s 3(b) of
the PWPA) were held to comply with s 8 of the Charter109
In its consultations with me the OBA similarly stated that the existing nature of court
security is necessary and is generally ldquowell toleratedrdquo At the same time however it
submits that the security regime should not be ldquoshoehornedrdquo into the PWPA regime and
that it would be preferable to provide a legislative framework tailored for the specific
security requirements While the PWPA has been relied upon as support for the exercise
of powers by the police in providing court security the OBA submits that the PWPArsquos
ldquosingle security schemerdquo which declares something a ldquopublic workrdquo is an ldquoawkward
blunt instrument in a world where more specialized tools are necessaryrdquo When
warrantless searches are being done on a routine basis it is advisable to have specific
legislation providing peace officers with such power
Recommendation
Court security legislation is currently in place in many jurisdictions across Canada and
contain provisions that permit warrantless searches of persons wanting to access a
108 Ibid at para 25109 The Court in R v SS [2005] OJ No 5002 (SCJ) agreed with the findings and rationale of the Court of Appeal in Campanella
47
courthouse The constitutional validity of such legislation in Manitoba was upheld by that
provincersquos highest court110
Given the ongoing need for warrantless searches at courthouses the Province of Ontario
should consider specific court security legislation in Ontario to support the security
measures in our courthouses if the PWPA is to be repealed taking into consideration the
responsibilities of the municipal police services boards provided in s 137 of the Police
Services Act This legislation should only be passed after proper notice consultation and
legislative debate
2 Power Generating Infrastructures
It is clear from the submissions that I received from representatives of OPG and the
Canadian Nuclear Safety Commission (ldquoCNSCrdquo) that the PWPA currently plays a role in
providing security officers with the powers to secure power generating infrastructures
including the ability to carry firearms and the ability to stop and require identification
from those in proximity to those nuclear plants
Security is of the utmost importance in protecting a nuclear power plant Members of the
public do not need to access a nuclear or similar power facility unless employed at the
facility or carrying out work for the facility111
The security of areas within nuclear power plants is governed by the Nuclear Security
110 R v Lindsay [2004] MJ No 380 (CA) 111 Though the discussion focuses on nuclear power plants I have been informed that other power generating infrastructures use the PWPA to designate their security officers as guards As a result if the PWPA is repealed it will be necessary to broaden the consultations in relation to these other power generating infrastructures
48
Regulations112 Every nuclear power plant must be located within a ldquoprotected areardquo113
This protected area is the area within a fenced perimeter which is alarmed and
continually patrolled This area must be equipped with devices that employ two
independent systems to detect intrusion into the area114 The Nuclear Security
Regulations also provide detailed specifications for the barrier which must enclose the
protected area115 In addition licensees must ldquoidentify all vital areas and implement
physical protection measures ndash including access control and measures designed to delay
unauthorized accessrdquo116
The Nuclear Security Regulations also provide detailed provisions regarding entry into
protected areas No person can ldquoenter a protected area without physical proof of the
recorded authorization of the licenseerdquo117 Further to this on entry into a protected area
ldquothat personrsquos identity shall be verified by two separate personnel identity verification
systems one of which is an access card reader and the other of which is a biometric
personnel identity verification devicerdquo118 Licensees must also ldquoensure that vehicle
portals are used for the entry and exit of land vehicles into and from a protected areardquo119
Physical protection measures are also required to reduce the chance of a forced land
vehicle entry into a protected area120
The power to conduct searches upon entry to a protected area is also provided by the
112 SOR2000-209 113 Ibid s 8114 Ibid s 11(a)(i)115 Ibid s 9116 Ibid s 141117 Ibid s 17(1)118 Ibid s 171119 Ibid s 91(1)120 Ibid s 91(4)
49
Nuclear Security Regulations Signs must be posted that are visible to people about to
enter the protected area stating that they must allow a nuclear security officer (ldquoNSOrdquo) to
ldquosearch them and everything in their possession including any land vehicle for weapons
and explosive substancesrdquo121 In addition when leaving the protected area people must
allow NSOs to ldquosearch them and everything in their possession including any land
vehicle for Category I II or III nuclear materialrdquo122 People are not permitted to enter or
leave a protected area unless these searches are carried out123 The Nuclear Security
Regulations provide for the method of search including ldquoa hand-held scanner a walk-
through scanner or any similar devicerdquo124 In addition if an NSO determines it
necessary a frisk search can be carried out by a person of the same sex125
I have been informed that the area outside of but adjacent to the ldquoprotected areardquo is
referred to as the ldquocontrolled areardquo This area includes roadways and waterways within
the nuclear facilityrsquos property boundaries adjacent to or in close proximity to the nuclear
power plantrsquos protected area and may be generally accessible to the public
As a result of the September 11 2001 terrorist attacks the Nuclear Security Regulations
were amended to require that high security nuclear facilities maintain an on-site armed
Nuclear Response Force (ldquoNRFrdquo)126 The NRF is composed of specialized NSOs
Section 32 of the Nuclear Security Regulations requires the NRF to be capable of making
an effective intervention taking into account the threat
121 Ibid s 27(1)(a)122 Ibid s 27(1)(b)123 Ibid s 27(2)124 Ibid s 27(5)(a)125 Ibid s 27(5)(b)126 Ibid s 32
50
Members of the NRF are mandated by the Nuclear Security Regulations to be ldquotrained in
the use of firearms authorized to carry firearms in Canada and qualified to use themrdquo127
However to satisfy this requirement the NRF resorts to the PWPA since the federal
regulations do not authorize the NRF to carry firearms without a licence However
under s 2(1) of the PWPA NSOs are designated as ldquoguardsrdquo with the powers of a peace
officer most significantly to carry and use firearms without having to be licensed128
Such a designation also enables the OPG to acquire and dispose of firearms
In the consultations I had with the OPG and the CNSC they advised me that NSOs
receive training equivalent to Canadian police standards and that NRF officers receive
training equivalent to federal and provincial police tactical team requirements
Another aspect of the PWPA used to secure nuclear power plants relates to powers
exercised by NSOs in ldquocontrolled areasrdquo The federal regulations do not provide the
NSOs with any power to demand identification within this area However pursuant to
the PWPA as appointed ldquoguardsrdquo the NSOs have the power to demand identity
verification in the controlled area They also have the authority to arrest anyone who
obstructs NSOs in the performance of their duties under the PWPA
In addition to using the PWPA to secure the controlled areas I have been advised by the
OPG that NSOs use powers pursuant to the PWPA to secure areas within 100 metres of a
nuclear facilityrsquos property line immediately adjacent to the controlled area These powers
are exercised under the broad language of the PWPA regarding ldquoapproaches to public
127 Ibid s 1 (on-site nuclear response force definition)128 Section 11707 of the Criminal Code exempts peace officers from licensing requirements for possessing firearms and other prohibited and restricted weapons
51
worksrdquo This is an illustration of the problem with the vagueness of this language in the
legislation As these powers are exercised on public land they could be challenged as a
potential infringement on individual rights and freedoms However I have been advised
that there have been no such incidents to date The need to ensure the security of these
facilities must be taken into the balance
NSOs must be able to monitor and control access to the controlled areas and areas close
to a nuclear power plantrsquos property line This provides for a more secure perimeter
around these facilities They need authority to challenge individuals acting in a suspicious
manner or conducting surveillance of nuclear facilities The OPG has informed me that
areas outside a nuclear facilityrsquos property line immediately adjacent to the controlled
area are still close enough to take advantage of the short distance to conduct intelligence
using high-powered surveillance equipment These nuclear power plants are not located
on isolated islands and are therefore vulnerable Both the Pickering Nuclear Generating
Station and the Darlington Nuclear Generating Station operate within major urban areas
being 30 km and 60 km east of downtown Toronto respectively I am advised that
previous events such as ldquoThe Toronto 18rdquo129 have shown that those intent on targeting
vital infrastructure such as power generating facilities often use reconnaissance and
intelligence gathering as precursor tactics
Recommendation
If the PWPA is to be repealed it is imperative that those who secure our nuclear and
power generating facilities be given the requisite specific legislative powers to do so
129 See for example ldquoLast 2 Toronto 18 accused found guiltyrdquo CBC News (23 June 2010) online cbcca lthttpwwwcbccanewscanadatorontostory20100623toronto-18-verdicthtmlgt
52
The source for these powers should be set out in the federal Nuclear Security
Regulations However if this is not a desired option the Government of Ontario must
consider specific legislation setting out the specific powers required to properly secure
these facilities and the specific location in which these powers can be exercised Such
legislation should not be passed without proper notice consultation and legislative
debate
53
SECTION 6 CONCLUSION
The PWPA was enacted in 1939 to support the war effort At the time the protection of
Ontariorsquos hydroelectric facilities from sabotage was of particular concern Since then the
PWPA has been used to provide the legal foundation for the powers exercised by the
police in providing court security and even more recently by the OPG in securing
nuclear power facilities In June 2010 the PWPA was used to provide powers to secure
intergovernmental conferences The vagueness of the PWPA permits it to be used in
situations when it is arguably not necessary and potentially abusive In my view the
PWPA has been used for purposes beyond its original intent
The time for the PWPA seems to have passed If the Government of Ontario enacts as I
have suggested specific legislation to provide for courthouse security and power
generating infrastructure security it would appear that there is no longer a need for the
PWPA I am also mindful of the existence of counter-terrorism and emergencies
legislation to deal with these situations as they arise
ldquoIn determining the boundaries of police powers caution is required to ensure the proper
balance between preventing excessive intrusions on an individualrsquos liberty and privacy
and enabling the police to do what is reasonably necessary to perform their duties in
protecting the publicrdquo130 The overly broad and vague language of the PWPA does not
strike this required balance with individual rights and freedoms
The late Justice Jackson of the United States Supreme Court stated that every
emergency power once conferred ldquolies about like a loaded weapon ready for the hand of
130 R v Clayton [2007] 2 SCR 725 at 742
54
any authority that can bring forward a plausible claim of an urgent needrdquo131 The need to
protect the public must be balanced with the requirement to preserve fundamental rights
and freedoms
Yet at the same time ldquoCanadians are entitled to demand the best public order policing
possible from their governmentrdquo132 There is no question that we live in a different world
post 911 We live in difficult times with constant threats both domestically and from
abroad The police clearly need to be given adequate powers to carry out their duties
The police use their expertise on a daily basis to assess the powers they require In
instances when they take action that exceeds their powers their actions are examined by
various mandated bodies This process I believe results in the proper balance between
police powers and individual rights and freedoms Therefore any legislation that purports
to grant special police powers must be specific and direct and developed in consultation
with stakeholders and tested through thorough debate in our transparent democratic
system
131 Korematsu v United States 323 US 214 (1944)132 Supra note 26 p 8
55
to the G20 it was only available on a website not frequently accessed by the public
Since O Reg 23310 was not published in The Ontario Gazette until after it was
revoked it may be that the regulation was not adequately accessible to the public
Reverse onus offences have been found to be ldquorationally connectedrdquo when there is plainly
a rational connection between the proven fact and the fact to be presumed Reverse
onuses have also been upheld when the burden placed on the Crown would be virtually
impossible to meet (such as proving sanity)104 Even if the accused only has the burden
of disproving the fact that heshe did not have lawful authority to be in a public work or
on an approach thereto there may not be a rational connection between the proven fact
and the fact to be presumed
The history of threats and violence at previous intergovernmental conferences
demonstrated that the protection of G20 participants was a pressing and substantial
concern However given the broadness of the PWPA every exercise of it raises the
potential for Charter scrutiny
Recommendation
Given the public policy considerations I have raised regarding the PWPA and Charter
concerns that could arise I recommend that the PWPA be repealed after the Province has
considered potential policy and security gaps as a result of its repeal
B Other uses of the Public Works Protection Act
It appears from my consultations with stakeholder groups that if the PWPA is repealed
104 R v Chaulk [1990] 3 SCR 1303 at 1340
44
there are two areas which may require legislation to provide specific peace officer
powers These two areas are court security and the protection of nuclear power facilities
and other power generating infrastructures
1 Court Security
During my decade as Ontariorsquos Attorney General (1975 to 1985) there were three
murders in provincial courthouses as well as many threats to members of courthouse staff
and others As violent acts in courthouses can be anticipated courtroom security is often
required
Individuals are compelled to go to court for a variety of reasons such as appearing as an
accused as a witness or for jury duty To provide protection to those who work there or
are compelled to attend an adequate level of court security may require a search without
warrant of each and every individual who seeks to enter a courthouse It is not reasonable
to require prior judicial authorization for each search that takes place
The courts have considered the constitutionality of these provisions of the PWPA in
conjunction with section 137 of the Ontario Police Services Act in the context of court
security
Section 137 of the Ontario Police Services Act imposes a responsibility on municipal
police services boards to secure the premises where court proceedings are conducted and
includes
1 Ensuring the security of judges and of persons taking part in or attending proceedings
45
2 During the hours when judges and members of the public are normally present ensuring the security of the premises
3 Ensuring the secure custody of persons in custody who are on or about the premises including persons taken into custody at proceedings
4 Determining appropriate levels of security for the purposes of paragraphs 1 2 and 3
In R v Campanella105 Ms Campanella was attending the John Sopinka Courthouse in
Hamilton At the courthouse there were signs posted stating that those who entered
would be searched for weapons When Ms Campanellarsquos bag was searched marijuana
was found and she was charged with the possession of marijuana She argued that her s
8 Charter protection against unreasonable search and seizure had been violated and the
marijuana discovered during the search should therefore be excluded as evidence The
trial judge and the summary convictions appeal court rejected the section 8 Charter
argument and the appellant appealed to the Ontario Court of Appeal
The Ontario Court of Appeal agreed that ldquogiven the importance of the government
objective and the context in which these searches take place it is reasonable to authorize
warrantless searches of those entering courthouse facilitiesrdquo106 The Court stated ldquothe
only effective way to diminish the risk in a large courthouse is to subject everyone
without prior security clearance to some kind of inspection I can see no other feasible
means of achieving the aimrdquo107
The Court also pointed out the concern relating to the erosion of the benefits and
105 [2002] OJ No 5104 (SCJ) affrsquod [2005] OJ No 1345 (CA) [ldquoCampanellardquo]106 R v Campanella [2005] OJ No 1345 at para 17 (CA)107 Ibid at para 19
46
protections conferred by s 8 of the Charter108
I am sensitive to the concern that we should not erode the benefits and protections of s 8 by gradually sanctioning ever-greater intrusions into privacy because of unfounded fears We should not lightly accept that searches in public places are justified solely because people have become used to them and expect them However the record in this case establishes the justification for the kinds of searches carried out in this case
Ultimately the appeal was dismissed and s 137 of the Police Services Act and s 3(b) of
the PWPA) were held to comply with s 8 of the Charter109
In its consultations with me the OBA similarly stated that the existing nature of court
security is necessary and is generally ldquowell toleratedrdquo At the same time however it
submits that the security regime should not be ldquoshoehornedrdquo into the PWPA regime and
that it would be preferable to provide a legislative framework tailored for the specific
security requirements While the PWPA has been relied upon as support for the exercise
of powers by the police in providing court security the OBA submits that the PWPArsquos
ldquosingle security schemerdquo which declares something a ldquopublic workrdquo is an ldquoawkward
blunt instrument in a world where more specialized tools are necessaryrdquo When
warrantless searches are being done on a routine basis it is advisable to have specific
legislation providing peace officers with such power
Recommendation
Court security legislation is currently in place in many jurisdictions across Canada and
contain provisions that permit warrantless searches of persons wanting to access a
108 Ibid at para 25109 The Court in R v SS [2005] OJ No 5002 (SCJ) agreed with the findings and rationale of the Court of Appeal in Campanella
47
courthouse The constitutional validity of such legislation in Manitoba was upheld by that
provincersquos highest court110
Given the ongoing need for warrantless searches at courthouses the Province of Ontario
should consider specific court security legislation in Ontario to support the security
measures in our courthouses if the PWPA is to be repealed taking into consideration the
responsibilities of the municipal police services boards provided in s 137 of the Police
Services Act This legislation should only be passed after proper notice consultation and
legislative debate
2 Power Generating Infrastructures
It is clear from the submissions that I received from representatives of OPG and the
Canadian Nuclear Safety Commission (ldquoCNSCrdquo) that the PWPA currently plays a role in
providing security officers with the powers to secure power generating infrastructures
including the ability to carry firearms and the ability to stop and require identification
from those in proximity to those nuclear plants
Security is of the utmost importance in protecting a nuclear power plant Members of the
public do not need to access a nuclear or similar power facility unless employed at the
facility or carrying out work for the facility111
The security of areas within nuclear power plants is governed by the Nuclear Security
110 R v Lindsay [2004] MJ No 380 (CA) 111 Though the discussion focuses on nuclear power plants I have been informed that other power generating infrastructures use the PWPA to designate their security officers as guards As a result if the PWPA is repealed it will be necessary to broaden the consultations in relation to these other power generating infrastructures
48
Regulations112 Every nuclear power plant must be located within a ldquoprotected areardquo113
This protected area is the area within a fenced perimeter which is alarmed and
continually patrolled This area must be equipped with devices that employ two
independent systems to detect intrusion into the area114 The Nuclear Security
Regulations also provide detailed specifications for the barrier which must enclose the
protected area115 In addition licensees must ldquoidentify all vital areas and implement
physical protection measures ndash including access control and measures designed to delay
unauthorized accessrdquo116
The Nuclear Security Regulations also provide detailed provisions regarding entry into
protected areas No person can ldquoenter a protected area without physical proof of the
recorded authorization of the licenseerdquo117 Further to this on entry into a protected area
ldquothat personrsquos identity shall be verified by two separate personnel identity verification
systems one of which is an access card reader and the other of which is a biometric
personnel identity verification devicerdquo118 Licensees must also ldquoensure that vehicle
portals are used for the entry and exit of land vehicles into and from a protected areardquo119
Physical protection measures are also required to reduce the chance of a forced land
vehicle entry into a protected area120
The power to conduct searches upon entry to a protected area is also provided by the
112 SOR2000-209 113 Ibid s 8114 Ibid s 11(a)(i)115 Ibid s 9116 Ibid s 141117 Ibid s 17(1)118 Ibid s 171119 Ibid s 91(1)120 Ibid s 91(4)
49
Nuclear Security Regulations Signs must be posted that are visible to people about to
enter the protected area stating that they must allow a nuclear security officer (ldquoNSOrdquo) to
ldquosearch them and everything in their possession including any land vehicle for weapons
and explosive substancesrdquo121 In addition when leaving the protected area people must
allow NSOs to ldquosearch them and everything in their possession including any land
vehicle for Category I II or III nuclear materialrdquo122 People are not permitted to enter or
leave a protected area unless these searches are carried out123 The Nuclear Security
Regulations provide for the method of search including ldquoa hand-held scanner a walk-
through scanner or any similar devicerdquo124 In addition if an NSO determines it
necessary a frisk search can be carried out by a person of the same sex125
I have been informed that the area outside of but adjacent to the ldquoprotected areardquo is
referred to as the ldquocontrolled areardquo This area includes roadways and waterways within
the nuclear facilityrsquos property boundaries adjacent to or in close proximity to the nuclear
power plantrsquos protected area and may be generally accessible to the public
As a result of the September 11 2001 terrorist attacks the Nuclear Security Regulations
were amended to require that high security nuclear facilities maintain an on-site armed
Nuclear Response Force (ldquoNRFrdquo)126 The NRF is composed of specialized NSOs
Section 32 of the Nuclear Security Regulations requires the NRF to be capable of making
an effective intervention taking into account the threat
121 Ibid s 27(1)(a)122 Ibid s 27(1)(b)123 Ibid s 27(2)124 Ibid s 27(5)(a)125 Ibid s 27(5)(b)126 Ibid s 32
50
Members of the NRF are mandated by the Nuclear Security Regulations to be ldquotrained in
the use of firearms authorized to carry firearms in Canada and qualified to use themrdquo127
However to satisfy this requirement the NRF resorts to the PWPA since the federal
regulations do not authorize the NRF to carry firearms without a licence However
under s 2(1) of the PWPA NSOs are designated as ldquoguardsrdquo with the powers of a peace
officer most significantly to carry and use firearms without having to be licensed128
Such a designation also enables the OPG to acquire and dispose of firearms
In the consultations I had with the OPG and the CNSC they advised me that NSOs
receive training equivalent to Canadian police standards and that NRF officers receive
training equivalent to federal and provincial police tactical team requirements
Another aspect of the PWPA used to secure nuclear power plants relates to powers
exercised by NSOs in ldquocontrolled areasrdquo The federal regulations do not provide the
NSOs with any power to demand identification within this area However pursuant to
the PWPA as appointed ldquoguardsrdquo the NSOs have the power to demand identity
verification in the controlled area They also have the authority to arrest anyone who
obstructs NSOs in the performance of their duties under the PWPA
In addition to using the PWPA to secure the controlled areas I have been advised by the
OPG that NSOs use powers pursuant to the PWPA to secure areas within 100 metres of a
nuclear facilityrsquos property line immediately adjacent to the controlled area These powers
are exercised under the broad language of the PWPA regarding ldquoapproaches to public
127 Ibid s 1 (on-site nuclear response force definition)128 Section 11707 of the Criminal Code exempts peace officers from licensing requirements for possessing firearms and other prohibited and restricted weapons
51
worksrdquo This is an illustration of the problem with the vagueness of this language in the
legislation As these powers are exercised on public land they could be challenged as a
potential infringement on individual rights and freedoms However I have been advised
that there have been no such incidents to date The need to ensure the security of these
facilities must be taken into the balance
NSOs must be able to monitor and control access to the controlled areas and areas close
to a nuclear power plantrsquos property line This provides for a more secure perimeter
around these facilities They need authority to challenge individuals acting in a suspicious
manner or conducting surveillance of nuclear facilities The OPG has informed me that
areas outside a nuclear facilityrsquos property line immediately adjacent to the controlled
area are still close enough to take advantage of the short distance to conduct intelligence
using high-powered surveillance equipment These nuclear power plants are not located
on isolated islands and are therefore vulnerable Both the Pickering Nuclear Generating
Station and the Darlington Nuclear Generating Station operate within major urban areas
being 30 km and 60 km east of downtown Toronto respectively I am advised that
previous events such as ldquoThe Toronto 18rdquo129 have shown that those intent on targeting
vital infrastructure such as power generating facilities often use reconnaissance and
intelligence gathering as precursor tactics
Recommendation
If the PWPA is to be repealed it is imperative that those who secure our nuclear and
power generating facilities be given the requisite specific legislative powers to do so
129 See for example ldquoLast 2 Toronto 18 accused found guiltyrdquo CBC News (23 June 2010) online cbcca lthttpwwwcbccanewscanadatorontostory20100623toronto-18-verdicthtmlgt
52
The source for these powers should be set out in the federal Nuclear Security
Regulations However if this is not a desired option the Government of Ontario must
consider specific legislation setting out the specific powers required to properly secure
these facilities and the specific location in which these powers can be exercised Such
legislation should not be passed without proper notice consultation and legislative
debate
53
SECTION 6 CONCLUSION
The PWPA was enacted in 1939 to support the war effort At the time the protection of
Ontariorsquos hydroelectric facilities from sabotage was of particular concern Since then the
PWPA has been used to provide the legal foundation for the powers exercised by the
police in providing court security and even more recently by the OPG in securing
nuclear power facilities In June 2010 the PWPA was used to provide powers to secure
intergovernmental conferences The vagueness of the PWPA permits it to be used in
situations when it is arguably not necessary and potentially abusive In my view the
PWPA has been used for purposes beyond its original intent
The time for the PWPA seems to have passed If the Government of Ontario enacts as I
have suggested specific legislation to provide for courthouse security and power
generating infrastructure security it would appear that there is no longer a need for the
PWPA I am also mindful of the existence of counter-terrorism and emergencies
legislation to deal with these situations as they arise
ldquoIn determining the boundaries of police powers caution is required to ensure the proper
balance between preventing excessive intrusions on an individualrsquos liberty and privacy
and enabling the police to do what is reasonably necessary to perform their duties in
protecting the publicrdquo130 The overly broad and vague language of the PWPA does not
strike this required balance with individual rights and freedoms
The late Justice Jackson of the United States Supreme Court stated that every
emergency power once conferred ldquolies about like a loaded weapon ready for the hand of
130 R v Clayton [2007] 2 SCR 725 at 742
54
any authority that can bring forward a plausible claim of an urgent needrdquo131 The need to
protect the public must be balanced with the requirement to preserve fundamental rights
and freedoms
Yet at the same time ldquoCanadians are entitled to demand the best public order policing
possible from their governmentrdquo132 There is no question that we live in a different world
post 911 We live in difficult times with constant threats both domestically and from
abroad The police clearly need to be given adequate powers to carry out their duties
The police use their expertise on a daily basis to assess the powers they require In
instances when they take action that exceeds their powers their actions are examined by
various mandated bodies This process I believe results in the proper balance between
police powers and individual rights and freedoms Therefore any legislation that purports
to grant special police powers must be specific and direct and developed in consultation
with stakeholders and tested through thorough debate in our transparent democratic
system
131 Korematsu v United States 323 US 214 (1944)132 Supra note 26 p 8
55
there are two areas which may require legislation to provide specific peace officer
powers These two areas are court security and the protection of nuclear power facilities
and other power generating infrastructures
1 Court Security
During my decade as Ontariorsquos Attorney General (1975 to 1985) there were three
murders in provincial courthouses as well as many threats to members of courthouse staff
and others As violent acts in courthouses can be anticipated courtroom security is often
required
Individuals are compelled to go to court for a variety of reasons such as appearing as an
accused as a witness or for jury duty To provide protection to those who work there or
are compelled to attend an adequate level of court security may require a search without
warrant of each and every individual who seeks to enter a courthouse It is not reasonable
to require prior judicial authorization for each search that takes place
The courts have considered the constitutionality of these provisions of the PWPA in
conjunction with section 137 of the Ontario Police Services Act in the context of court
security
Section 137 of the Ontario Police Services Act imposes a responsibility on municipal
police services boards to secure the premises where court proceedings are conducted and
includes
1 Ensuring the security of judges and of persons taking part in or attending proceedings
45
2 During the hours when judges and members of the public are normally present ensuring the security of the premises
3 Ensuring the secure custody of persons in custody who are on or about the premises including persons taken into custody at proceedings
4 Determining appropriate levels of security for the purposes of paragraphs 1 2 and 3
In R v Campanella105 Ms Campanella was attending the John Sopinka Courthouse in
Hamilton At the courthouse there were signs posted stating that those who entered
would be searched for weapons When Ms Campanellarsquos bag was searched marijuana
was found and she was charged with the possession of marijuana She argued that her s
8 Charter protection against unreasonable search and seizure had been violated and the
marijuana discovered during the search should therefore be excluded as evidence The
trial judge and the summary convictions appeal court rejected the section 8 Charter
argument and the appellant appealed to the Ontario Court of Appeal
The Ontario Court of Appeal agreed that ldquogiven the importance of the government
objective and the context in which these searches take place it is reasonable to authorize
warrantless searches of those entering courthouse facilitiesrdquo106 The Court stated ldquothe
only effective way to diminish the risk in a large courthouse is to subject everyone
without prior security clearance to some kind of inspection I can see no other feasible
means of achieving the aimrdquo107
The Court also pointed out the concern relating to the erosion of the benefits and
105 [2002] OJ No 5104 (SCJ) affrsquod [2005] OJ No 1345 (CA) [ldquoCampanellardquo]106 R v Campanella [2005] OJ No 1345 at para 17 (CA)107 Ibid at para 19
46
protections conferred by s 8 of the Charter108
I am sensitive to the concern that we should not erode the benefits and protections of s 8 by gradually sanctioning ever-greater intrusions into privacy because of unfounded fears We should not lightly accept that searches in public places are justified solely because people have become used to them and expect them However the record in this case establishes the justification for the kinds of searches carried out in this case
Ultimately the appeal was dismissed and s 137 of the Police Services Act and s 3(b) of
the PWPA) were held to comply with s 8 of the Charter109
In its consultations with me the OBA similarly stated that the existing nature of court
security is necessary and is generally ldquowell toleratedrdquo At the same time however it
submits that the security regime should not be ldquoshoehornedrdquo into the PWPA regime and
that it would be preferable to provide a legislative framework tailored for the specific
security requirements While the PWPA has been relied upon as support for the exercise
of powers by the police in providing court security the OBA submits that the PWPArsquos
ldquosingle security schemerdquo which declares something a ldquopublic workrdquo is an ldquoawkward
blunt instrument in a world where more specialized tools are necessaryrdquo When
warrantless searches are being done on a routine basis it is advisable to have specific
legislation providing peace officers with such power
Recommendation
Court security legislation is currently in place in many jurisdictions across Canada and
contain provisions that permit warrantless searches of persons wanting to access a
108 Ibid at para 25109 The Court in R v SS [2005] OJ No 5002 (SCJ) agreed with the findings and rationale of the Court of Appeal in Campanella
47
courthouse The constitutional validity of such legislation in Manitoba was upheld by that
provincersquos highest court110
Given the ongoing need for warrantless searches at courthouses the Province of Ontario
should consider specific court security legislation in Ontario to support the security
measures in our courthouses if the PWPA is to be repealed taking into consideration the
responsibilities of the municipal police services boards provided in s 137 of the Police
Services Act This legislation should only be passed after proper notice consultation and
legislative debate
2 Power Generating Infrastructures
It is clear from the submissions that I received from representatives of OPG and the
Canadian Nuclear Safety Commission (ldquoCNSCrdquo) that the PWPA currently plays a role in
providing security officers with the powers to secure power generating infrastructures
including the ability to carry firearms and the ability to stop and require identification
from those in proximity to those nuclear plants
Security is of the utmost importance in protecting a nuclear power plant Members of the
public do not need to access a nuclear or similar power facility unless employed at the
facility or carrying out work for the facility111
The security of areas within nuclear power plants is governed by the Nuclear Security
110 R v Lindsay [2004] MJ No 380 (CA) 111 Though the discussion focuses on nuclear power plants I have been informed that other power generating infrastructures use the PWPA to designate their security officers as guards As a result if the PWPA is repealed it will be necessary to broaden the consultations in relation to these other power generating infrastructures
48
Regulations112 Every nuclear power plant must be located within a ldquoprotected areardquo113
This protected area is the area within a fenced perimeter which is alarmed and
continually patrolled This area must be equipped with devices that employ two
independent systems to detect intrusion into the area114 The Nuclear Security
Regulations also provide detailed specifications for the barrier which must enclose the
protected area115 In addition licensees must ldquoidentify all vital areas and implement
physical protection measures ndash including access control and measures designed to delay
unauthorized accessrdquo116
The Nuclear Security Regulations also provide detailed provisions regarding entry into
protected areas No person can ldquoenter a protected area without physical proof of the
recorded authorization of the licenseerdquo117 Further to this on entry into a protected area
ldquothat personrsquos identity shall be verified by two separate personnel identity verification
systems one of which is an access card reader and the other of which is a biometric
personnel identity verification devicerdquo118 Licensees must also ldquoensure that vehicle
portals are used for the entry and exit of land vehicles into and from a protected areardquo119
Physical protection measures are also required to reduce the chance of a forced land
vehicle entry into a protected area120
The power to conduct searches upon entry to a protected area is also provided by the
112 SOR2000-209 113 Ibid s 8114 Ibid s 11(a)(i)115 Ibid s 9116 Ibid s 141117 Ibid s 17(1)118 Ibid s 171119 Ibid s 91(1)120 Ibid s 91(4)
49
Nuclear Security Regulations Signs must be posted that are visible to people about to
enter the protected area stating that they must allow a nuclear security officer (ldquoNSOrdquo) to
ldquosearch them and everything in their possession including any land vehicle for weapons
and explosive substancesrdquo121 In addition when leaving the protected area people must
allow NSOs to ldquosearch them and everything in their possession including any land
vehicle for Category I II or III nuclear materialrdquo122 People are not permitted to enter or
leave a protected area unless these searches are carried out123 The Nuclear Security
Regulations provide for the method of search including ldquoa hand-held scanner a walk-
through scanner or any similar devicerdquo124 In addition if an NSO determines it
necessary a frisk search can be carried out by a person of the same sex125
I have been informed that the area outside of but adjacent to the ldquoprotected areardquo is
referred to as the ldquocontrolled areardquo This area includes roadways and waterways within
the nuclear facilityrsquos property boundaries adjacent to or in close proximity to the nuclear
power plantrsquos protected area and may be generally accessible to the public
As a result of the September 11 2001 terrorist attacks the Nuclear Security Regulations
were amended to require that high security nuclear facilities maintain an on-site armed
Nuclear Response Force (ldquoNRFrdquo)126 The NRF is composed of specialized NSOs
Section 32 of the Nuclear Security Regulations requires the NRF to be capable of making
an effective intervention taking into account the threat
121 Ibid s 27(1)(a)122 Ibid s 27(1)(b)123 Ibid s 27(2)124 Ibid s 27(5)(a)125 Ibid s 27(5)(b)126 Ibid s 32
50
Members of the NRF are mandated by the Nuclear Security Regulations to be ldquotrained in
the use of firearms authorized to carry firearms in Canada and qualified to use themrdquo127
However to satisfy this requirement the NRF resorts to the PWPA since the federal
regulations do not authorize the NRF to carry firearms without a licence However
under s 2(1) of the PWPA NSOs are designated as ldquoguardsrdquo with the powers of a peace
officer most significantly to carry and use firearms without having to be licensed128
Such a designation also enables the OPG to acquire and dispose of firearms
In the consultations I had with the OPG and the CNSC they advised me that NSOs
receive training equivalent to Canadian police standards and that NRF officers receive
training equivalent to federal and provincial police tactical team requirements
Another aspect of the PWPA used to secure nuclear power plants relates to powers
exercised by NSOs in ldquocontrolled areasrdquo The federal regulations do not provide the
NSOs with any power to demand identification within this area However pursuant to
the PWPA as appointed ldquoguardsrdquo the NSOs have the power to demand identity
verification in the controlled area They also have the authority to arrest anyone who
obstructs NSOs in the performance of their duties under the PWPA
In addition to using the PWPA to secure the controlled areas I have been advised by the
OPG that NSOs use powers pursuant to the PWPA to secure areas within 100 metres of a
nuclear facilityrsquos property line immediately adjacent to the controlled area These powers
are exercised under the broad language of the PWPA regarding ldquoapproaches to public
127 Ibid s 1 (on-site nuclear response force definition)128 Section 11707 of the Criminal Code exempts peace officers from licensing requirements for possessing firearms and other prohibited and restricted weapons
51
worksrdquo This is an illustration of the problem with the vagueness of this language in the
legislation As these powers are exercised on public land they could be challenged as a
potential infringement on individual rights and freedoms However I have been advised
that there have been no such incidents to date The need to ensure the security of these
facilities must be taken into the balance
NSOs must be able to monitor and control access to the controlled areas and areas close
to a nuclear power plantrsquos property line This provides for a more secure perimeter
around these facilities They need authority to challenge individuals acting in a suspicious
manner or conducting surveillance of nuclear facilities The OPG has informed me that
areas outside a nuclear facilityrsquos property line immediately adjacent to the controlled
area are still close enough to take advantage of the short distance to conduct intelligence
using high-powered surveillance equipment These nuclear power plants are not located
on isolated islands and are therefore vulnerable Both the Pickering Nuclear Generating
Station and the Darlington Nuclear Generating Station operate within major urban areas
being 30 km and 60 km east of downtown Toronto respectively I am advised that
previous events such as ldquoThe Toronto 18rdquo129 have shown that those intent on targeting
vital infrastructure such as power generating facilities often use reconnaissance and
intelligence gathering as precursor tactics
Recommendation
If the PWPA is to be repealed it is imperative that those who secure our nuclear and
power generating facilities be given the requisite specific legislative powers to do so
129 See for example ldquoLast 2 Toronto 18 accused found guiltyrdquo CBC News (23 June 2010) online cbcca lthttpwwwcbccanewscanadatorontostory20100623toronto-18-verdicthtmlgt
52
The source for these powers should be set out in the federal Nuclear Security
Regulations However if this is not a desired option the Government of Ontario must
consider specific legislation setting out the specific powers required to properly secure
these facilities and the specific location in which these powers can be exercised Such
legislation should not be passed without proper notice consultation and legislative
debate
53
SECTION 6 CONCLUSION
The PWPA was enacted in 1939 to support the war effort At the time the protection of
Ontariorsquos hydroelectric facilities from sabotage was of particular concern Since then the
PWPA has been used to provide the legal foundation for the powers exercised by the
police in providing court security and even more recently by the OPG in securing
nuclear power facilities In June 2010 the PWPA was used to provide powers to secure
intergovernmental conferences The vagueness of the PWPA permits it to be used in
situations when it is arguably not necessary and potentially abusive In my view the
PWPA has been used for purposes beyond its original intent
The time for the PWPA seems to have passed If the Government of Ontario enacts as I
have suggested specific legislation to provide for courthouse security and power
generating infrastructure security it would appear that there is no longer a need for the
PWPA I am also mindful of the existence of counter-terrorism and emergencies
legislation to deal with these situations as they arise
ldquoIn determining the boundaries of police powers caution is required to ensure the proper
balance between preventing excessive intrusions on an individualrsquos liberty and privacy
and enabling the police to do what is reasonably necessary to perform their duties in
protecting the publicrdquo130 The overly broad and vague language of the PWPA does not
strike this required balance with individual rights and freedoms
The late Justice Jackson of the United States Supreme Court stated that every
emergency power once conferred ldquolies about like a loaded weapon ready for the hand of
130 R v Clayton [2007] 2 SCR 725 at 742
54
any authority that can bring forward a plausible claim of an urgent needrdquo131 The need to
protect the public must be balanced with the requirement to preserve fundamental rights
and freedoms
Yet at the same time ldquoCanadians are entitled to demand the best public order policing
possible from their governmentrdquo132 There is no question that we live in a different world
post 911 We live in difficult times with constant threats both domestically and from
abroad The police clearly need to be given adequate powers to carry out their duties
The police use their expertise on a daily basis to assess the powers they require In
instances when they take action that exceeds their powers their actions are examined by
various mandated bodies This process I believe results in the proper balance between
police powers and individual rights and freedoms Therefore any legislation that purports
to grant special police powers must be specific and direct and developed in consultation
with stakeholders and tested through thorough debate in our transparent democratic
system
131 Korematsu v United States 323 US 214 (1944)132 Supra note 26 p 8
55
2 During the hours when judges and members of the public are normally present ensuring the security of the premises
3 Ensuring the secure custody of persons in custody who are on or about the premises including persons taken into custody at proceedings
4 Determining appropriate levels of security for the purposes of paragraphs 1 2 and 3
In R v Campanella105 Ms Campanella was attending the John Sopinka Courthouse in
Hamilton At the courthouse there were signs posted stating that those who entered
would be searched for weapons When Ms Campanellarsquos bag was searched marijuana
was found and she was charged with the possession of marijuana She argued that her s
8 Charter protection against unreasonable search and seizure had been violated and the
marijuana discovered during the search should therefore be excluded as evidence The
trial judge and the summary convictions appeal court rejected the section 8 Charter
argument and the appellant appealed to the Ontario Court of Appeal
The Ontario Court of Appeal agreed that ldquogiven the importance of the government
objective and the context in which these searches take place it is reasonable to authorize
warrantless searches of those entering courthouse facilitiesrdquo106 The Court stated ldquothe
only effective way to diminish the risk in a large courthouse is to subject everyone
without prior security clearance to some kind of inspection I can see no other feasible
means of achieving the aimrdquo107
The Court also pointed out the concern relating to the erosion of the benefits and
105 [2002] OJ No 5104 (SCJ) affrsquod [2005] OJ No 1345 (CA) [ldquoCampanellardquo]106 R v Campanella [2005] OJ No 1345 at para 17 (CA)107 Ibid at para 19
46
protections conferred by s 8 of the Charter108
I am sensitive to the concern that we should not erode the benefits and protections of s 8 by gradually sanctioning ever-greater intrusions into privacy because of unfounded fears We should not lightly accept that searches in public places are justified solely because people have become used to them and expect them However the record in this case establishes the justification for the kinds of searches carried out in this case
Ultimately the appeal was dismissed and s 137 of the Police Services Act and s 3(b) of
the PWPA) were held to comply with s 8 of the Charter109
In its consultations with me the OBA similarly stated that the existing nature of court
security is necessary and is generally ldquowell toleratedrdquo At the same time however it
submits that the security regime should not be ldquoshoehornedrdquo into the PWPA regime and
that it would be preferable to provide a legislative framework tailored for the specific
security requirements While the PWPA has been relied upon as support for the exercise
of powers by the police in providing court security the OBA submits that the PWPArsquos
ldquosingle security schemerdquo which declares something a ldquopublic workrdquo is an ldquoawkward
blunt instrument in a world where more specialized tools are necessaryrdquo When
warrantless searches are being done on a routine basis it is advisable to have specific
legislation providing peace officers with such power
Recommendation
Court security legislation is currently in place in many jurisdictions across Canada and
contain provisions that permit warrantless searches of persons wanting to access a
108 Ibid at para 25109 The Court in R v SS [2005] OJ No 5002 (SCJ) agreed with the findings and rationale of the Court of Appeal in Campanella
47
courthouse The constitutional validity of such legislation in Manitoba was upheld by that
provincersquos highest court110
Given the ongoing need for warrantless searches at courthouses the Province of Ontario
should consider specific court security legislation in Ontario to support the security
measures in our courthouses if the PWPA is to be repealed taking into consideration the
responsibilities of the municipal police services boards provided in s 137 of the Police
Services Act This legislation should only be passed after proper notice consultation and
legislative debate
2 Power Generating Infrastructures
It is clear from the submissions that I received from representatives of OPG and the
Canadian Nuclear Safety Commission (ldquoCNSCrdquo) that the PWPA currently plays a role in
providing security officers with the powers to secure power generating infrastructures
including the ability to carry firearms and the ability to stop and require identification
from those in proximity to those nuclear plants
Security is of the utmost importance in protecting a nuclear power plant Members of the
public do not need to access a nuclear or similar power facility unless employed at the
facility or carrying out work for the facility111
The security of areas within nuclear power plants is governed by the Nuclear Security
110 R v Lindsay [2004] MJ No 380 (CA) 111 Though the discussion focuses on nuclear power plants I have been informed that other power generating infrastructures use the PWPA to designate their security officers as guards As a result if the PWPA is repealed it will be necessary to broaden the consultations in relation to these other power generating infrastructures
48
Regulations112 Every nuclear power plant must be located within a ldquoprotected areardquo113
This protected area is the area within a fenced perimeter which is alarmed and
continually patrolled This area must be equipped with devices that employ two
independent systems to detect intrusion into the area114 The Nuclear Security
Regulations also provide detailed specifications for the barrier which must enclose the
protected area115 In addition licensees must ldquoidentify all vital areas and implement
physical protection measures ndash including access control and measures designed to delay
unauthorized accessrdquo116
The Nuclear Security Regulations also provide detailed provisions regarding entry into
protected areas No person can ldquoenter a protected area without physical proof of the
recorded authorization of the licenseerdquo117 Further to this on entry into a protected area
ldquothat personrsquos identity shall be verified by two separate personnel identity verification
systems one of which is an access card reader and the other of which is a biometric
personnel identity verification devicerdquo118 Licensees must also ldquoensure that vehicle
portals are used for the entry and exit of land vehicles into and from a protected areardquo119
Physical protection measures are also required to reduce the chance of a forced land
vehicle entry into a protected area120
The power to conduct searches upon entry to a protected area is also provided by the
112 SOR2000-209 113 Ibid s 8114 Ibid s 11(a)(i)115 Ibid s 9116 Ibid s 141117 Ibid s 17(1)118 Ibid s 171119 Ibid s 91(1)120 Ibid s 91(4)
49
Nuclear Security Regulations Signs must be posted that are visible to people about to
enter the protected area stating that they must allow a nuclear security officer (ldquoNSOrdquo) to
ldquosearch them and everything in their possession including any land vehicle for weapons
and explosive substancesrdquo121 In addition when leaving the protected area people must
allow NSOs to ldquosearch them and everything in their possession including any land
vehicle for Category I II or III nuclear materialrdquo122 People are not permitted to enter or
leave a protected area unless these searches are carried out123 The Nuclear Security
Regulations provide for the method of search including ldquoa hand-held scanner a walk-
through scanner or any similar devicerdquo124 In addition if an NSO determines it
necessary a frisk search can be carried out by a person of the same sex125
I have been informed that the area outside of but adjacent to the ldquoprotected areardquo is
referred to as the ldquocontrolled areardquo This area includes roadways and waterways within
the nuclear facilityrsquos property boundaries adjacent to or in close proximity to the nuclear
power plantrsquos protected area and may be generally accessible to the public
As a result of the September 11 2001 terrorist attacks the Nuclear Security Regulations
were amended to require that high security nuclear facilities maintain an on-site armed
Nuclear Response Force (ldquoNRFrdquo)126 The NRF is composed of specialized NSOs
Section 32 of the Nuclear Security Regulations requires the NRF to be capable of making
an effective intervention taking into account the threat
121 Ibid s 27(1)(a)122 Ibid s 27(1)(b)123 Ibid s 27(2)124 Ibid s 27(5)(a)125 Ibid s 27(5)(b)126 Ibid s 32
50
Members of the NRF are mandated by the Nuclear Security Regulations to be ldquotrained in
the use of firearms authorized to carry firearms in Canada and qualified to use themrdquo127
However to satisfy this requirement the NRF resorts to the PWPA since the federal
regulations do not authorize the NRF to carry firearms without a licence However
under s 2(1) of the PWPA NSOs are designated as ldquoguardsrdquo with the powers of a peace
officer most significantly to carry and use firearms without having to be licensed128
Such a designation also enables the OPG to acquire and dispose of firearms
In the consultations I had with the OPG and the CNSC they advised me that NSOs
receive training equivalent to Canadian police standards and that NRF officers receive
training equivalent to federal and provincial police tactical team requirements
Another aspect of the PWPA used to secure nuclear power plants relates to powers
exercised by NSOs in ldquocontrolled areasrdquo The federal regulations do not provide the
NSOs with any power to demand identification within this area However pursuant to
the PWPA as appointed ldquoguardsrdquo the NSOs have the power to demand identity
verification in the controlled area They also have the authority to arrest anyone who
obstructs NSOs in the performance of their duties under the PWPA
In addition to using the PWPA to secure the controlled areas I have been advised by the
OPG that NSOs use powers pursuant to the PWPA to secure areas within 100 metres of a
nuclear facilityrsquos property line immediately adjacent to the controlled area These powers
are exercised under the broad language of the PWPA regarding ldquoapproaches to public
127 Ibid s 1 (on-site nuclear response force definition)128 Section 11707 of the Criminal Code exempts peace officers from licensing requirements for possessing firearms and other prohibited and restricted weapons
51
worksrdquo This is an illustration of the problem with the vagueness of this language in the
legislation As these powers are exercised on public land they could be challenged as a
potential infringement on individual rights and freedoms However I have been advised
that there have been no such incidents to date The need to ensure the security of these
facilities must be taken into the balance
NSOs must be able to monitor and control access to the controlled areas and areas close
to a nuclear power plantrsquos property line This provides for a more secure perimeter
around these facilities They need authority to challenge individuals acting in a suspicious
manner or conducting surveillance of nuclear facilities The OPG has informed me that
areas outside a nuclear facilityrsquos property line immediately adjacent to the controlled
area are still close enough to take advantage of the short distance to conduct intelligence
using high-powered surveillance equipment These nuclear power plants are not located
on isolated islands and are therefore vulnerable Both the Pickering Nuclear Generating
Station and the Darlington Nuclear Generating Station operate within major urban areas
being 30 km and 60 km east of downtown Toronto respectively I am advised that
previous events such as ldquoThe Toronto 18rdquo129 have shown that those intent on targeting
vital infrastructure such as power generating facilities often use reconnaissance and
intelligence gathering as precursor tactics
Recommendation
If the PWPA is to be repealed it is imperative that those who secure our nuclear and
power generating facilities be given the requisite specific legislative powers to do so
129 See for example ldquoLast 2 Toronto 18 accused found guiltyrdquo CBC News (23 June 2010) online cbcca lthttpwwwcbccanewscanadatorontostory20100623toronto-18-verdicthtmlgt
52
The source for these powers should be set out in the federal Nuclear Security
Regulations However if this is not a desired option the Government of Ontario must
consider specific legislation setting out the specific powers required to properly secure
these facilities and the specific location in which these powers can be exercised Such
legislation should not be passed without proper notice consultation and legislative
debate
53
SECTION 6 CONCLUSION
The PWPA was enacted in 1939 to support the war effort At the time the protection of
Ontariorsquos hydroelectric facilities from sabotage was of particular concern Since then the
PWPA has been used to provide the legal foundation for the powers exercised by the
police in providing court security and even more recently by the OPG in securing
nuclear power facilities In June 2010 the PWPA was used to provide powers to secure
intergovernmental conferences The vagueness of the PWPA permits it to be used in
situations when it is arguably not necessary and potentially abusive In my view the
PWPA has been used for purposes beyond its original intent
The time for the PWPA seems to have passed If the Government of Ontario enacts as I
have suggested specific legislation to provide for courthouse security and power
generating infrastructure security it would appear that there is no longer a need for the
PWPA I am also mindful of the existence of counter-terrorism and emergencies
legislation to deal with these situations as they arise
ldquoIn determining the boundaries of police powers caution is required to ensure the proper
balance between preventing excessive intrusions on an individualrsquos liberty and privacy
and enabling the police to do what is reasonably necessary to perform their duties in
protecting the publicrdquo130 The overly broad and vague language of the PWPA does not
strike this required balance with individual rights and freedoms
The late Justice Jackson of the United States Supreme Court stated that every
emergency power once conferred ldquolies about like a loaded weapon ready for the hand of
130 R v Clayton [2007] 2 SCR 725 at 742
54
any authority that can bring forward a plausible claim of an urgent needrdquo131 The need to
protect the public must be balanced with the requirement to preserve fundamental rights
and freedoms
Yet at the same time ldquoCanadians are entitled to demand the best public order policing
possible from their governmentrdquo132 There is no question that we live in a different world
post 911 We live in difficult times with constant threats both domestically and from
abroad The police clearly need to be given adequate powers to carry out their duties
The police use their expertise on a daily basis to assess the powers they require In
instances when they take action that exceeds their powers their actions are examined by
various mandated bodies This process I believe results in the proper balance between
police powers and individual rights and freedoms Therefore any legislation that purports
to grant special police powers must be specific and direct and developed in consultation
with stakeholders and tested through thorough debate in our transparent democratic
system
131 Korematsu v United States 323 US 214 (1944)132 Supra note 26 p 8
55
protections conferred by s 8 of the Charter108
I am sensitive to the concern that we should not erode the benefits and protections of s 8 by gradually sanctioning ever-greater intrusions into privacy because of unfounded fears We should not lightly accept that searches in public places are justified solely because people have become used to them and expect them However the record in this case establishes the justification for the kinds of searches carried out in this case
Ultimately the appeal was dismissed and s 137 of the Police Services Act and s 3(b) of
the PWPA) were held to comply with s 8 of the Charter109
In its consultations with me the OBA similarly stated that the existing nature of court
security is necessary and is generally ldquowell toleratedrdquo At the same time however it
submits that the security regime should not be ldquoshoehornedrdquo into the PWPA regime and
that it would be preferable to provide a legislative framework tailored for the specific
security requirements While the PWPA has been relied upon as support for the exercise
of powers by the police in providing court security the OBA submits that the PWPArsquos
ldquosingle security schemerdquo which declares something a ldquopublic workrdquo is an ldquoawkward
blunt instrument in a world where more specialized tools are necessaryrdquo When
warrantless searches are being done on a routine basis it is advisable to have specific
legislation providing peace officers with such power
Recommendation
Court security legislation is currently in place in many jurisdictions across Canada and
contain provisions that permit warrantless searches of persons wanting to access a
108 Ibid at para 25109 The Court in R v SS [2005] OJ No 5002 (SCJ) agreed with the findings and rationale of the Court of Appeal in Campanella
47
courthouse The constitutional validity of such legislation in Manitoba was upheld by that
provincersquos highest court110
Given the ongoing need for warrantless searches at courthouses the Province of Ontario
should consider specific court security legislation in Ontario to support the security
measures in our courthouses if the PWPA is to be repealed taking into consideration the
responsibilities of the municipal police services boards provided in s 137 of the Police
Services Act This legislation should only be passed after proper notice consultation and
legislative debate
2 Power Generating Infrastructures
It is clear from the submissions that I received from representatives of OPG and the
Canadian Nuclear Safety Commission (ldquoCNSCrdquo) that the PWPA currently plays a role in
providing security officers with the powers to secure power generating infrastructures
including the ability to carry firearms and the ability to stop and require identification
from those in proximity to those nuclear plants
Security is of the utmost importance in protecting a nuclear power plant Members of the
public do not need to access a nuclear or similar power facility unless employed at the
facility or carrying out work for the facility111
The security of areas within nuclear power plants is governed by the Nuclear Security
110 R v Lindsay [2004] MJ No 380 (CA) 111 Though the discussion focuses on nuclear power plants I have been informed that other power generating infrastructures use the PWPA to designate their security officers as guards As a result if the PWPA is repealed it will be necessary to broaden the consultations in relation to these other power generating infrastructures
48
Regulations112 Every nuclear power plant must be located within a ldquoprotected areardquo113
This protected area is the area within a fenced perimeter which is alarmed and
continually patrolled This area must be equipped with devices that employ two
independent systems to detect intrusion into the area114 The Nuclear Security
Regulations also provide detailed specifications for the barrier which must enclose the
protected area115 In addition licensees must ldquoidentify all vital areas and implement
physical protection measures ndash including access control and measures designed to delay
unauthorized accessrdquo116
The Nuclear Security Regulations also provide detailed provisions regarding entry into
protected areas No person can ldquoenter a protected area without physical proof of the
recorded authorization of the licenseerdquo117 Further to this on entry into a protected area
ldquothat personrsquos identity shall be verified by two separate personnel identity verification
systems one of which is an access card reader and the other of which is a biometric
personnel identity verification devicerdquo118 Licensees must also ldquoensure that vehicle
portals are used for the entry and exit of land vehicles into and from a protected areardquo119
Physical protection measures are also required to reduce the chance of a forced land
vehicle entry into a protected area120
The power to conduct searches upon entry to a protected area is also provided by the
112 SOR2000-209 113 Ibid s 8114 Ibid s 11(a)(i)115 Ibid s 9116 Ibid s 141117 Ibid s 17(1)118 Ibid s 171119 Ibid s 91(1)120 Ibid s 91(4)
49
Nuclear Security Regulations Signs must be posted that are visible to people about to
enter the protected area stating that they must allow a nuclear security officer (ldquoNSOrdquo) to
ldquosearch them and everything in their possession including any land vehicle for weapons
and explosive substancesrdquo121 In addition when leaving the protected area people must
allow NSOs to ldquosearch them and everything in their possession including any land
vehicle for Category I II or III nuclear materialrdquo122 People are not permitted to enter or
leave a protected area unless these searches are carried out123 The Nuclear Security
Regulations provide for the method of search including ldquoa hand-held scanner a walk-
through scanner or any similar devicerdquo124 In addition if an NSO determines it
necessary a frisk search can be carried out by a person of the same sex125
I have been informed that the area outside of but adjacent to the ldquoprotected areardquo is
referred to as the ldquocontrolled areardquo This area includes roadways and waterways within
the nuclear facilityrsquos property boundaries adjacent to or in close proximity to the nuclear
power plantrsquos protected area and may be generally accessible to the public
As a result of the September 11 2001 terrorist attacks the Nuclear Security Regulations
were amended to require that high security nuclear facilities maintain an on-site armed
Nuclear Response Force (ldquoNRFrdquo)126 The NRF is composed of specialized NSOs
Section 32 of the Nuclear Security Regulations requires the NRF to be capable of making
an effective intervention taking into account the threat
121 Ibid s 27(1)(a)122 Ibid s 27(1)(b)123 Ibid s 27(2)124 Ibid s 27(5)(a)125 Ibid s 27(5)(b)126 Ibid s 32
50
Members of the NRF are mandated by the Nuclear Security Regulations to be ldquotrained in
the use of firearms authorized to carry firearms in Canada and qualified to use themrdquo127
However to satisfy this requirement the NRF resorts to the PWPA since the federal
regulations do not authorize the NRF to carry firearms without a licence However
under s 2(1) of the PWPA NSOs are designated as ldquoguardsrdquo with the powers of a peace
officer most significantly to carry and use firearms without having to be licensed128
Such a designation also enables the OPG to acquire and dispose of firearms
In the consultations I had with the OPG and the CNSC they advised me that NSOs
receive training equivalent to Canadian police standards and that NRF officers receive
training equivalent to federal and provincial police tactical team requirements
Another aspect of the PWPA used to secure nuclear power plants relates to powers
exercised by NSOs in ldquocontrolled areasrdquo The federal regulations do not provide the
NSOs with any power to demand identification within this area However pursuant to
the PWPA as appointed ldquoguardsrdquo the NSOs have the power to demand identity
verification in the controlled area They also have the authority to arrest anyone who
obstructs NSOs in the performance of their duties under the PWPA
In addition to using the PWPA to secure the controlled areas I have been advised by the
OPG that NSOs use powers pursuant to the PWPA to secure areas within 100 metres of a
nuclear facilityrsquos property line immediately adjacent to the controlled area These powers
are exercised under the broad language of the PWPA regarding ldquoapproaches to public
127 Ibid s 1 (on-site nuclear response force definition)128 Section 11707 of the Criminal Code exempts peace officers from licensing requirements for possessing firearms and other prohibited and restricted weapons
51
worksrdquo This is an illustration of the problem with the vagueness of this language in the
legislation As these powers are exercised on public land they could be challenged as a
potential infringement on individual rights and freedoms However I have been advised
that there have been no such incidents to date The need to ensure the security of these
facilities must be taken into the balance
NSOs must be able to monitor and control access to the controlled areas and areas close
to a nuclear power plantrsquos property line This provides for a more secure perimeter
around these facilities They need authority to challenge individuals acting in a suspicious
manner or conducting surveillance of nuclear facilities The OPG has informed me that
areas outside a nuclear facilityrsquos property line immediately adjacent to the controlled
area are still close enough to take advantage of the short distance to conduct intelligence
using high-powered surveillance equipment These nuclear power plants are not located
on isolated islands and are therefore vulnerable Both the Pickering Nuclear Generating
Station and the Darlington Nuclear Generating Station operate within major urban areas
being 30 km and 60 km east of downtown Toronto respectively I am advised that
previous events such as ldquoThe Toronto 18rdquo129 have shown that those intent on targeting
vital infrastructure such as power generating facilities often use reconnaissance and
intelligence gathering as precursor tactics
Recommendation
If the PWPA is to be repealed it is imperative that those who secure our nuclear and
power generating facilities be given the requisite specific legislative powers to do so
129 See for example ldquoLast 2 Toronto 18 accused found guiltyrdquo CBC News (23 June 2010) online cbcca lthttpwwwcbccanewscanadatorontostory20100623toronto-18-verdicthtmlgt
52
The source for these powers should be set out in the federal Nuclear Security
Regulations However if this is not a desired option the Government of Ontario must
consider specific legislation setting out the specific powers required to properly secure
these facilities and the specific location in which these powers can be exercised Such
legislation should not be passed without proper notice consultation and legislative
debate
53
SECTION 6 CONCLUSION
The PWPA was enacted in 1939 to support the war effort At the time the protection of
Ontariorsquos hydroelectric facilities from sabotage was of particular concern Since then the
PWPA has been used to provide the legal foundation for the powers exercised by the
police in providing court security and even more recently by the OPG in securing
nuclear power facilities In June 2010 the PWPA was used to provide powers to secure
intergovernmental conferences The vagueness of the PWPA permits it to be used in
situations when it is arguably not necessary and potentially abusive In my view the
PWPA has been used for purposes beyond its original intent
The time for the PWPA seems to have passed If the Government of Ontario enacts as I
have suggested specific legislation to provide for courthouse security and power
generating infrastructure security it would appear that there is no longer a need for the
PWPA I am also mindful of the existence of counter-terrorism and emergencies
legislation to deal with these situations as they arise
ldquoIn determining the boundaries of police powers caution is required to ensure the proper
balance between preventing excessive intrusions on an individualrsquos liberty and privacy
and enabling the police to do what is reasonably necessary to perform their duties in
protecting the publicrdquo130 The overly broad and vague language of the PWPA does not
strike this required balance with individual rights and freedoms
The late Justice Jackson of the United States Supreme Court stated that every
emergency power once conferred ldquolies about like a loaded weapon ready for the hand of
130 R v Clayton [2007] 2 SCR 725 at 742
54
any authority that can bring forward a plausible claim of an urgent needrdquo131 The need to
protect the public must be balanced with the requirement to preserve fundamental rights
and freedoms
Yet at the same time ldquoCanadians are entitled to demand the best public order policing
possible from their governmentrdquo132 There is no question that we live in a different world
post 911 We live in difficult times with constant threats both domestically and from
abroad The police clearly need to be given adequate powers to carry out their duties
The police use their expertise on a daily basis to assess the powers they require In
instances when they take action that exceeds their powers their actions are examined by
various mandated bodies This process I believe results in the proper balance between
police powers and individual rights and freedoms Therefore any legislation that purports
to grant special police powers must be specific and direct and developed in consultation
with stakeholders and tested through thorough debate in our transparent democratic
system
131 Korematsu v United States 323 US 214 (1944)132 Supra note 26 p 8
55
courthouse The constitutional validity of such legislation in Manitoba was upheld by that
provincersquos highest court110
Given the ongoing need for warrantless searches at courthouses the Province of Ontario
should consider specific court security legislation in Ontario to support the security
measures in our courthouses if the PWPA is to be repealed taking into consideration the
responsibilities of the municipal police services boards provided in s 137 of the Police
Services Act This legislation should only be passed after proper notice consultation and
legislative debate
2 Power Generating Infrastructures
It is clear from the submissions that I received from representatives of OPG and the
Canadian Nuclear Safety Commission (ldquoCNSCrdquo) that the PWPA currently plays a role in
providing security officers with the powers to secure power generating infrastructures
including the ability to carry firearms and the ability to stop and require identification
from those in proximity to those nuclear plants
Security is of the utmost importance in protecting a nuclear power plant Members of the
public do not need to access a nuclear or similar power facility unless employed at the
facility or carrying out work for the facility111
The security of areas within nuclear power plants is governed by the Nuclear Security
110 R v Lindsay [2004] MJ No 380 (CA) 111 Though the discussion focuses on nuclear power plants I have been informed that other power generating infrastructures use the PWPA to designate their security officers as guards As a result if the PWPA is repealed it will be necessary to broaden the consultations in relation to these other power generating infrastructures
48
Regulations112 Every nuclear power plant must be located within a ldquoprotected areardquo113
This protected area is the area within a fenced perimeter which is alarmed and
continually patrolled This area must be equipped with devices that employ two
independent systems to detect intrusion into the area114 The Nuclear Security
Regulations also provide detailed specifications for the barrier which must enclose the
protected area115 In addition licensees must ldquoidentify all vital areas and implement
physical protection measures ndash including access control and measures designed to delay
unauthorized accessrdquo116
The Nuclear Security Regulations also provide detailed provisions regarding entry into
protected areas No person can ldquoenter a protected area without physical proof of the
recorded authorization of the licenseerdquo117 Further to this on entry into a protected area
ldquothat personrsquos identity shall be verified by two separate personnel identity verification
systems one of which is an access card reader and the other of which is a biometric
personnel identity verification devicerdquo118 Licensees must also ldquoensure that vehicle
portals are used for the entry and exit of land vehicles into and from a protected areardquo119
Physical protection measures are also required to reduce the chance of a forced land
vehicle entry into a protected area120
The power to conduct searches upon entry to a protected area is also provided by the
112 SOR2000-209 113 Ibid s 8114 Ibid s 11(a)(i)115 Ibid s 9116 Ibid s 141117 Ibid s 17(1)118 Ibid s 171119 Ibid s 91(1)120 Ibid s 91(4)
49
Nuclear Security Regulations Signs must be posted that are visible to people about to
enter the protected area stating that they must allow a nuclear security officer (ldquoNSOrdquo) to
ldquosearch them and everything in their possession including any land vehicle for weapons
and explosive substancesrdquo121 In addition when leaving the protected area people must
allow NSOs to ldquosearch them and everything in their possession including any land
vehicle for Category I II or III nuclear materialrdquo122 People are not permitted to enter or
leave a protected area unless these searches are carried out123 The Nuclear Security
Regulations provide for the method of search including ldquoa hand-held scanner a walk-
through scanner or any similar devicerdquo124 In addition if an NSO determines it
necessary a frisk search can be carried out by a person of the same sex125
I have been informed that the area outside of but adjacent to the ldquoprotected areardquo is
referred to as the ldquocontrolled areardquo This area includes roadways and waterways within
the nuclear facilityrsquos property boundaries adjacent to or in close proximity to the nuclear
power plantrsquos protected area and may be generally accessible to the public
As a result of the September 11 2001 terrorist attacks the Nuclear Security Regulations
were amended to require that high security nuclear facilities maintain an on-site armed
Nuclear Response Force (ldquoNRFrdquo)126 The NRF is composed of specialized NSOs
Section 32 of the Nuclear Security Regulations requires the NRF to be capable of making
an effective intervention taking into account the threat
121 Ibid s 27(1)(a)122 Ibid s 27(1)(b)123 Ibid s 27(2)124 Ibid s 27(5)(a)125 Ibid s 27(5)(b)126 Ibid s 32
50
Members of the NRF are mandated by the Nuclear Security Regulations to be ldquotrained in
the use of firearms authorized to carry firearms in Canada and qualified to use themrdquo127
However to satisfy this requirement the NRF resorts to the PWPA since the federal
regulations do not authorize the NRF to carry firearms without a licence However
under s 2(1) of the PWPA NSOs are designated as ldquoguardsrdquo with the powers of a peace
officer most significantly to carry and use firearms without having to be licensed128
Such a designation also enables the OPG to acquire and dispose of firearms
In the consultations I had with the OPG and the CNSC they advised me that NSOs
receive training equivalent to Canadian police standards and that NRF officers receive
training equivalent to federal and provincial police tactical team requirements
Another aspect of the PWPA used to secure nuclear power plants relates to powers
exercised by NSOs in ldquocontrolled areasrdquo The federal regulations do not provide the
NSOs with any power to demand identification within this area However pursuant to
the PWPA as appointed ldquoguardsrdquo the NSOs have the power to demand identity
verification in the controlled area They also have the authority to arrest anyone who
obstructs NSOs in the performance of their duties under the PWPA
In addition to using the PWPA to secure the controlled areas I have been advised by the
OPG that NSOs use powers pursuant to the PWPA to secure areas within 100 metres of a
nuclear facilityrsquos property line immediately adjacent to the controlled area These powers
are exercised under the broad language of the PWPA regarding ldquoapproaches to public
127 Ibid s 1 (on-site nuclear response force definition)128 Section 11707 of the Criminal Code exempts peace officers from licensing requirements for possessing firearms and other prohibited and restricted weapons
51
worksrdquo This is an illustration of the problem with the vagueness of this language in the
legislation As these powers are exercised on public land they could be challenged as a
potential infringement on individual rights and freedoms However I have been advised
that there have been no such incidents to date The need to ensure the security of these
facilities must be taken into the balance
NSOs must be able to monitor and control access to the controlled areas and areas close
to a nuclear power plantrsquos property line This provides for a more secure perimeter
around these facilities They need authority to challenge individuals acting in a suspicious
manner or conducting surveillance of nuclear facilities The OPG has informed me that
areas outside a nuclear facilityrsquos property line immediately adjacent to the controlled
area are still close enough to take advantage of the short distance to conduct intelligence
using high-powered surveillance equipment These nuclear power plants are not located
on isolated islands and are therefore vulnerable Both the Pickering Nuclear Generating
Station and the Darlington Nuclear Generating Station operate within major urban areas
being 30 km and 60 km east of downtown Toronto respectively I am advised that
previous events such as ldquoThe Toronto 18rdquo129 have shown that those intent on targeting
vital infrastructure such as power generating facilities often use reconnaissance and
intelligence gathering as precursor tactics
Recommendation
If the PWPA is to be repealed it is imperative that those who secure our nuclear and
power generating facilities be given the requisite specific legislative powers to do so
129 See for example ldquoLast 2 Toronto 18 accused found guiltyrdquo CBC News (23 June 2010) online cbcca lthttpwwwcbccanewscanadatorontostory20100623toronto-18-verdicthtmlgt
52
The source for these powers should be set out in the federal Nuclear Security
Regulations However if this is not a desired option the Government of Ontario must
consider specific legislation setting out the specific powers required to properly secure
these facilities and the specific location in which these powers can be exercised Such
legislation should not be passed without proper notice consultation and legislative
debate
53
SECTION 6 CONCLUSION
The PWPA was enacted in 1939 to support the war effort At the time the protection of
Ontariorsquos hydroelectric facilities from sabotage was of particular concern Since then the
PWPA has been used to provide the legal foundation for the powers exercised by the
police in providing court security and even more recently by the OPG in securing
nuclear power facilities In June 2010 the PWPA was used to provide powers to secure
intergovernmental conferences The vagueness of the PWPA permits it to be used in
situations when it is arguably not necessary and potentially abusive In my view the
PWPA has been used for purposes beyond its original intent
The time for the PWPA seems to have passed If the Government of Ontario enacts as I
have suggested specific legislation to provide for courthouse security and power
generating infrastructure security it would appear that there is no longer a need for the
PWPA I am also mindful of the existence of counter-terrorism and emergencies
legislation to deal with these situations as they arise
ldquoIn determining the boundaries of police powers caution is required to ensure the proper
balance between preventing excessive intrusions on an individualrsquos liberty and privacy
and enabling the police to do what is reasonably necessary to perform their duties in
protecting the publicrdquo130 The overly broad and vague language of the PWPA does not
strike this required balance with individual rights and freedoms
The late Justice Jackson of the United States Supreme Court stated that every
emergency power once conferred ldquolies about like a loaded weapon ready for the hand of
130 R v Clayton [2007] 2 SCR 725 at 742
54
any authority that can bring forward a plausible claim of an urgent needrdquo131 The need to
protect the public must be balanced with the requirement to preserve fundamental rights
and freedoms
Yet at the same time ldquoCanadians are entitled to demand the best public order policing
possible from their governmentrdquo132 There is no question that we live in a different world
post 911 We live in difficult times with constant threats both domestically and from
abroad The police clearly need to be given adequate powers to carry out their duties
The police use their expertise on a daily basis to assess the powers they require In
instances when they take action that exceeds their powers their actions are examined by
various mandated bodies This process I believe results in the proper balance between
police powers and individual rights and freedoms Therefore any legislation that purports
to grant special police powers must be specific and direct and developed in consultation
with stakeholders and tested through thorough debate in our transparent democratic
system
131 Korematsu v United States 323 US 214 (1944)132 Supra note 26 p 8
55
Regulations112 Every nuclear power plant must be located within a ldquoprotected areardquo113
This protected area is the area within a fenced perimeter which is alarmed and
continually patrolled This area must be equipped with devices that employ two
independent systems to detect intrusion into the area114 The Nuclear Security
Regulations also provide detailed specifications for the barrier which must enclose the
protected area115 In addition licensees must ldquoidentify all vital areas and implement
physical protection measures ndash including access control and measures designed to delay
unauthorized accessrdquo116
The Nuclear Security Regulations also provide detailed provisions regarding entry into
protected areas No person can ldquoenter a protected area without physical proof of the
recorded authorization of the licenseerdquo117 Further to this on entry into a protected area
ldquothat personrsquos identity shall be verified by two separate personnel identity verification
systems one of which is an access card reader and the other of which is a biometric
personnel identity verification devicerdquo118 Licensees must also ldquoensure that vehicle
portals are used for the entry and exit of land vehicles into and from a protected areardquo119
Physical protection measures are also required to reduce the chance of a forced land
vehicle entry into a protected area120
The power to conduct searches upon entry to a protected area is also provided by the
112 SOR2000-209 113 Ibid s 8114 Ibid s 11(a)(i)115 Ibid s 9116 Ibid s 141117 Ibid s 17(1)118 Ibid s 171119 Ibid s 91(1)120 Ibid s 91(4)
49
Nuclear Security Regulations Signs must be posted that are visible to people about to
enter the protected area stating that they must allow a nuclear security officer (ldquoNSOrdquo) to
ldquosearch them and everything in their possession including any land vehicle for weapons
and explosive substancesrdquo121 In addition when leaving the protected area people must
allow NSOs to ldquosearch them and everything in their possession including any land
vehicle for Category I II or III nuclear materialrdquo122 People are not permitted to enter or
leave a protected area unless these searches are carried out123 The Nuclear Security
Regulations provide for the method of search including ldquoa hand-held scanner a walk-
through scanner or any similar devicerdquo124 In addition if an NSO determines it
necessary a frisk search can be carried out by a person of the same sex125
I have been informed that the area outside of but adjacent to the ldquoprotected areardquo is
referred to as the ldquocontrolled areardquo This area includes roadways and waterways within
the nuclear facilityrsquos property boundaries adjacent to or in close proximity to the nuclear
power plantrsquos protected area and may be generally accessible to the public
As a result of the September 11 2001 terrorist attacks the Nuclear Security Regulations
were amended to require that high security nuclear facilities maintain an on-site armed
Nuclear Response Force (ldquoNRFrdquo)126 The NRF is composed of specialized NSOs
Section 32 of the Nuclear Security Regulations requires the NRF to be capable of making
an effective intervention taking into account the threat
121 Ibid s 27(1)(a)122 Ibid s 27(1)(b)123 Ibid s 27(2)124 Ibid s 27(5)(a)125 Ibid s 27(5)(b)126 Ibid s 32
50
Members of the NRF are mandated by the Nuclear Security Regulations to be ldquotrained in
the use of firearms authorized to carry firearms in Canada and qualified to use themrdquo127
However to satisfy this requirement the NRF resorts to the PWPA since the federal
regulations do not authorize the NRF to carry firearms without a licence However
under s 2(1) of the PWPA NSOs are designated as ldquoguardsrdquo with the powers of a peace
officer most significantly to carry and use firearms without having to be licensed128
Such a designation also enables the OPG to acquire and dispose of firearms
In the consultations I had with the OPG and the CNSC they advised me that NSOs
receive training equivalent to Canadian police standards and that NRF officers receive
training equivalent to federal and provincial police tactical team requirements
Another aspect of the PWPA used to secure nuclear power plants relates to powers
exercised by NSOs in ldquocontrolled areasrdquo The federal regulations do not provide the
NSOs with any power to demand identification within this area However pursuant to
the PWPA as appointed ldquoguardsrdquo the NSOs have the power to demand identity
verification in the controlled area They also have the authority to arrest anyone who
obstructs NSOs in the performance of their duties under the PWPA
In addition to using the PWPA to secure the controlled areas I have been advised by the
OPG that NSOs use powers pursuant to the PWPA to secure areas within 100 metres of a
nuclear facilityrsquos property line immediately adjacent to the controlled area These powers
are exercised under the broad language of the PWPA regarding ldquoapproaches to public
127 Ibid s 1 (on-site nuclear response force definition)128 Section 11707 of the Criminal Code exempts peace officers from licensing requirements for possessing firearms and other prohibited and restricted weapons
51
worksrdquo This is an illustration of the problem with the vagueness of this language in the
legislation As these powers are exercised on public land they could be challenged as a
potential infringement on individual rights and freedoms However I have been advised
that there have been no such incidents to date The need to ensure the security of these
facilities must be taken into the balance
NSOs must be able to monitor and control access to the controlled areas and areas close
to a nuclear power plantrsquos property line This provides for a more secure perimeter
around these facilities They need authority to challenge individuals acting in a suspicious
manner or conducting surveillance of nuclear facilities The OPG has informed me that
areas outside a nuclear facilityrsquos property line immediately adjacent to the controlled
area are still close enough to take advantage of the short distance to conduct intelligence
using high-powered surveillance equipment These nuclear power plants are not located
on isolated islands and are therefore vulnerable Both the Pickering Nuclear Generating
Station and the Darlington Nuclear Generating Station operate within major urban areas
being 30 km and 60 km east of downtown Toronto respectively I am advised that
previous events such as ldquoThe Toronto 18rdquo129 have shown that those intent on targeting
vital infrastructure such as power generating facilities often use reconnaissance and
intelligence gathering as precursor tactics
Recommendation
If the PWPA is to be repealed it is imperative that those who secure our nuclear and
power generating facilities be given the requisite specific legislative powers to do so
129 See for example ldquoLast 2 Toronto 18 accused found guiltyrdquo CBC News (23 June 2010) online cbcca lthttpwwwcbccanewscanadatorontostory20100623toronto-18-verdicthtmlgt
52
The source for these powers should be set out in the federal Nuclear Security
Regulations However if this is not a desired option the Government of Ontario must
consider specific legislation setting out the specific powers required to properly secure
these facilities and the specific location in which these powers can be exercised Such
legislation should not be passed without proper notice consultation and legislative
debate
53
SECTION 6 CONCLUSION
The PWPA was enacted in 1939 to support the war effort At the time the protection of
Ontariorsquos hydroelectric facilities from sabotage was of particular concern Since then the
PWPA has been used to provide the legal foundation for the powers exercised by the
police in providing court security and even more recently by the OPG in securing
nuclear power facilities In June 2010 the PWPA was used to provide powers to secure
intergovernmental conferences The vagueness of the PWPA permits it to be used in
situations when it is arguably not necessary and potentially abusive In my view the
PWPA has been used for purposes beyond its original intent
The time for the PWPA seems to have passed If the Government of Ontario enacts as I
have suggested specific legislation to provide for courthouse security and power
generating infrastructure security it would appear that there is no longer a need for the
PWPA I am also mindful of the existence of counter-terrorism and emergencies
legislation to deal with these situations as they arise
ldquoIn determining the boundaries of police powers caution is required to ensure the proper
balance between preventing excessive intrusions on an individualrsquos liberty and privacy
and enabling the police to do what is reasonably necessary to perform their duties in
protecting the publicrdquo130 The overly broad and vague language of the PWPA does not
strike this required balance with individual rights and freedoms
The late Justice Jackson of the United States Supreme Court stated that every
emergency power once conferred ldquolies about like a loaded weapon ready for the hand of
130 R v Clayton [2007] 2 SCR 725 at 742
54
any authority that can bring forward a plausible claim of an urgent needrdquo131 The need to
protect the public must be balanced with the requirement to preserve fundamental rights
and freedoms
Yet at the same time ldquoCanadians are entitled to demand the best public order policing
possible from their governmentrdquo132 There is no question that we live in a different world
post 911 We live in difficult times with constant threats both domestically and from
abroad The police clearly need to be given adequate powers to carry out their duties
The police use their expertise on a daily basis to assess the powers they require In
instances when they take action that exceeds their powers their actions are examined by
various mandated bodies This process I believe results in the proper balance between
police powers and individual rights and freedoms Therefore any legislation that purports
to grant special police powers must be specific and direct and developed in consultation
with stakeholders and tested through thorough debate in our transparent democratic
system
131 Korematsu v United States 323 US 214 (1944)132 Supra note 26 p 8
55
Nuclear Security Regulations Signs must be posted that are visible to people about to
enter the protected area stating that they must allow a nuclear security officer (ldquoNSOrdquo) to
ldquosearch them and everything in their possession including any land vehicle for weapons
and explosive substancesrdquo121 In addition when leaving the protected area people must
allow NSOs to ldquosearch them and everything in their possession including any land
vehicle for Category I II or III nuclear materialrdquo122 People are not permitted to enter or
leave a protected area unless these searches are carried out123 The Nuclear Security
Regulations provide for the method of search including ldquoa hand-held scanner a walk-
through scanner or any similar devicerdquo124 In addition if an NSO determines it
necessary a frisk search can be carried out by a person of the same sex125
I have been informed that the area outside of but adjacent to the ldquoprotected areardquo is
referred to as the ldquocontrolled areardquo This area includes roadways and waterways within
the nuclear facilityrsquos property boundaries adjacent to or in close proximity to the nuclear
power plantrsquos protected area and may be generally accessible to the public
As a result of the September 11 2001 terrorist attacks the Nuclear Security Regulations
were amended to require that high security nuclear facilities maintain an on-site armed
Nuclear Response Force (ldquoNRFrdquo)126 The NRF is composed of specialized NSOs
Section 32 of the Nuclear Security Regulations requires the NRF to be capable of making
an effective intervention taking into account the threat
121 Ibid s 27(1)(a)122 Ibid s 27(1)(b)123 Ibid s 27(2)124 Ibid s 27(5)(a)125 Ibid s 27(5)(b)126 Ibid s 32
50
Members of the NRF are mandated by the Nuclear Security Regulations to be ldquotrained in
the use of firearms authorized to carry firearms in Canada and qualified to use themrdquo127
However to satisfy this requirement the NRF resorts to the PWPA since the federal
regulations do not authorize the NRF to carry firearms without a licence However
under s 2(1) of the PWPA NSOs are designated as ldquoguardsrdquo with the powers of a peace
officer most significantly to carry and use firearms without having to be licensed128
Such a designation also enables the OPG to acquire and dispose of firearms
In the consultations I had with the OPG and the CNSC they advised me that NSOs
receive training equivalent to Canadian police standards and that NRF officers receive
training equivalent to federal and provincial police tactical team requirements
Another aspect of the PWPA used to secure nuclear power plants relates to powers
exercised by NSOs in ldquocontrolled areasrdquo The federal regulations do not provide the
NSOs with any power to demand identification within this area However pursuant to
the PWPA as appointed ldquoguardsrdquo the NSOs have the power to demand identity
verification in the controlled area They also have the authority to arrest anyone who
obstructs NSOs in the performance of their duties under the PWPA
In addition to using the PWPA to secure the controlled areas I have been advised by the
OPG that NSOs use powers pursuant to the PWPA to secure areas within 100 metres of a
nuclear facilityrsquos property line immediately adjacent to the controlled area These powers
are exercised under the broad language of the PWPA regarding ldquoapproaches to public
127 Ibid s 1 (on-site nuclear response force definition)128 Section 11707 of the Criminal Code exempts peace officers from licensing requirements for possessing firearms and other prohibited and restricted weapons
51
worksrdquo This is an illustration of the problem with the vagueness of this language in the
legislation As these powers are exercised on public land they could be challenged as a
potential infringement on individual rights and freedoms However I have been advised
that there have been no such incidents to date The need to ensure the security of these
facilities must be taken into the balance
NSOs must be able to monitor and control access to the controlled areas and areas close
to a nuclear power plantrsquos property line This provides for a more secure perimeter
around these facilities They need authority to challenge individuals acting in a suspicious
manner or conducting surveillance of nuclear facilities The OPG has informed me that
areas outside a nuclear facilityrsquos property line immediately adjacent to the controlled
area are still close enough to take advantage of the short distance to conduct intelligence
using high-powered surveillance equipment These nuclear power plants are not located
on isolated islands and are therefore vulnerable Both the Pickering Nuclear Generating
Station and the Darlington Nuclear Generating Station operate within major urban areas
being 30 km and 60 km east of downtown Toronto respectively I am advised that
previous events such as ldquoThe Toronto 18rdquo129 have shown that those intent on targeting
vital infrastructure such as power generating facilities often use reconnaissance and
intelligence gathering as precursor tactics
Recommendation
If the PWPA is to be repealed it is imperative that those who secure our nuclear and
power generating facilities be given the requisite specific legislative powers to do so
129 See for example ldquoLast 2 Toronto 18 accused found guiltyrdquo CBC News (23 June 2010) online cbcca lthttpwwwcbccanewscanadatorontostory20100623toronto-18-verdicthtmlgt
52
The source for these powers should be set out in the federal Nuclear Security
Regulations However if this is not a desired option the Government of Ontario must
consider specific legislation setting out the specific powers required to properly secure
these facilities and the specific location in which these powers can be exercised Such
legislation should not be passed without proper notice consultation and legislative
debate
53
SECTION 6 CONCLUSION
The PWPA was enacted in 1939 to support the war effort At the time the protection of
Ontariorsquos hydroelectric facilities from sabotage was of particular concern Since then the
PWPA has been used to provide the legal foundation for the powers exercised by the
police in providing court security and even more recently by the OPG in securing
nuclear power facilities In June 2010 the PWPA was used to provide powers to secure
intergovernmental conferences The vagueness of the PWPA permits it to be used in
situations when it is arguably not necessary and potentially abusive In my view the
PWPA has been used for purposes beyond its original intent
The time for the PWPA seems to have passed If the Government of Ontario enacts as I
have suggested specific legislation to provide for courthouse security and power
generating infrastructure security it would appear that there is no longer a need for the
PWPA I am also mindful of the existence of counter-terrorism and emergencies
legislation to deal with these situations as they arise
ldquoIn determining the boundaries of police powers caution is required to ensure the proper
balance between preventing excessive intrusions on an individualrsquos liberty and privacy
and enabling the police to do what is reasonably necessary to perform their duties in
protecting the publicrdquo130 The overly broad and vague language of the PWPA does not
strike this required balance with individual rights and freedoms
The late Justice Jackson of the United States Supreme Court stated that every
emergency power once conferred ldquolies about like a loaded weapon ready for the hand of
130 R v Clayton [2007] 2 SCR 725 at 742
54
any authority that can bring forward a plausible claim of an urgent needrdquo131 The need to
protect the public must be balanced with the requirement to preserve fundamental rights
and freedoms
Yet at the same time ldquoCanadians are entitled to demand the best public order policing
possible from their governmentrdquo132 There is no question that we live in a different world
post 911 We live in difficult times with constant threats both domestically and from
abroad The police clearly need to be given adequate powers to carry out their duties
The police use their expertise on a daily basis to assess the powers they require In
instances when they take action that exceeds their powers their actions are examined by
various mandated bodies This process I believe results in the proper balance between
police powers and individual rights and freedoms Therefore any legislation that purports
to grant special police powers must be specific and direct and developed in consultation
with stakeholders and tested through thorough debate in our transparent democratic
system
131 Korematsu v United States 323 US 214 (1944)132 Supra note 26 p 8
55
Members of the NRF are mandated by the Nuclear Security Regulations to be ldquotrained in
the use of firearms authorized to carry firearms in Canada and qualified to use themrdquo127
However to satisfy this requirement the NRF resorts to the PWPA since the federal
regulations do not authorize the NRF to carry firearms without a licence However
under s 2(1) of the PWPA NSOs are designated as ldquoguardsrdquo with the powers of a peace
officer most significantly to carry and use firearms without having to be licensed128
Such a designation also enables the OPG to acquire and dispose of firearms
In the consultations I had with the OPG and the CNSC they advised me that NSOs
receive training equivalent to Canadian police standards and that NRF officers receive
training equivalent to federal and provincial police tactical team requirements
Another aspect of the PWPA used to secure nuclear power plants relates to powers
exercised by NSOs in ldquocontrolled areasrdquo The federal regulations do not provide the
NSOs with any power to demand identification within this area However pursuant to
the PWPA as appointed ldquoguardsrdquo the NSOs have the power to demand identity
verification in the controlled area They also have the authority to arrest anyone who
obstructs NSOs in the performance of their duties under the PWPA
In addition to using the PWPA to secure the controlled areas I have been advised by the
OPG that NSOs use powers pursuant to the PWPA to secure areas within 100 metres of a
nuclear facilityrsquos property line immediately adjacent to the controlled area These powers
are exercised under the broad language of the PWPA regarding ldquoapproaches to public
127 Ibid s 1 (on-site nuclear response force definition)128 Section 11707 of the Criminal Code exempts peace officers from licensing requirements for possessing firearms and other prohibited and restricted weapons
51
worksrdquo This is an illustration of the problem with the vagueness of this language in the
legislation As these powers are exercised on public land they could be challenged as a
potential infringement on individual rights and freedoms However I have been advised
that there have been no such incidents to date The need to ensure the security of these
facilities must be taken into the balance
NSOs must be able to monitor and control access to the controlled areas and areas close
to a nuclear power plantrsquos property line This provides for a more secure perimeter
around these facilities They need authority to challenge individuals acting in a suspicious
manner or conducting surveillance of nuclear facilities The OPG has informed me that
areas outside a nuclear facilityrsquos property line immediately adjacent to the controlled
area are still close enough to take advantage of the short distance to conduct intelligence
using high-powered surveillance equipment These nuclear power plants are not located
on isolated islands and are therefore vulnerable Both the Pickering Nuclear Generating
Station and the Darlington Nuclear Generating Station operate within major urban areas
being 30 km and 60 km east of downtown Toronto respectively I am advised that
previous events such as ldquoThe Toronto 18rdquo129 have shown that those intent on targeting
vital infrastructure such as power generating facilities often use reconnaissance and
intelligence gathering as precursor tactics
Recommendation
If the PWPA is to be repealed it is imperative that those who secure our nuclear and
power generating facilities be given the requisite specific legislative powers to do so
129 See for example ldquoLast 2 Toronto 18 accused found guiltyrdquo CBC News (23 June 2010) online cbcca lthttpwwwcbccanewscanadatorontostory20100623toronto-18-verdicthtmlgt
52
The source for these powers should be set out in the federal Nuclear Security
Regulations However if this is not a desired option the Government of Ontario must
consider specific legislation setting out the specific powers required to properly secure
these facilities and the specific location in which these powers can be exercised Such
legislation should not be passed without proper notice consultation and legislative
debate
53
SECTION 6 CONCLUSION
The PWPA was enacted in 1939 to support the war effort At the time the protection of
Ontariorsquos hydroelectric facilities from sabotage was of particular concern Since then the
PWPA has been used to provide the legal foundation for the powers exercised by the
police in providing court security and even more recently by the OPG in securing
nuclear power facilities In June 2010 the PWPA was used to provide powers to secure
intergovernmental conferences The vagueness of the PWPA permits it to be used in
situations when it is arguably not necessary and potentially abusive In my view the
PWPA has been used for purposes beyond its original intent
The time for the PWPA seems to have passed If the Government of Ontario enacts as I
have suggested specific legislation to provide for courthouse security and power
generating infrastructure security it would appear that there is no longer a need for the
PWPA I am also mindful of the existence of counter-terrorism and emergencies
legislation to deal with these situations as they arise
ldquoIn determining the boundaries of police powers caution is required to ensure the proper
balance between preventing excessive intrusions on an individualrsquos liberty and privacy
and enabling the police to do what is reasonably necessary to perform their duties in
protecting the publicrdquo130 The overly broad and vague language of the PWPA does not
strike this required balance with individual rights and freedoms
The late Justice Jackson of the United States Supreme Court stated that every
emergency power once conferred ldquolies about like a loaded weapon ready for the hand of
130 R v Clayton [2007] 2 SCR 725 at 742
54
any authority that can bring forward a plausible claim of an urgent needrdquo131 The need to
protect the public must be balanced with the requirement to preserve fundamental rights
and freedoms
Yet at the same time ldquoCanadians are entitled to demand the best public order policing
possible from their governmentrdquo132 There is no question that we live in a different world
post 911 We live in difficult times with constant threats both domestically and from
abroad The police clearly need to be given adequate powers to carry out their duties
The police use their expertise on a daily basis to assess the powers they require In
instances when they take action that exceeds their powers their actions are examined by
various mandated bodies This process I believe results in the proper balance between
police powers and individual rights and freedoms Therefore any legislation that purports
to grant special police powers must be specific and direct and developed in consultation
with stakeholders and tested through thorough debate in our transparent democratic
system
131 Korematsu v United States 323 US 214 (1944)132 Supra note 26 p 8
55
worksrdquo This is an illustration of the problem with the vagueness of this language in the
legislation As these powers are exercised on public land they could be challenged as a
potential infringement on individual rights and freedoms However I have been advised
that there have been no such incidents to date The need to ensure the security of these
facilities must be taken into the balance
NSOs must be able to monitor and control access to the controlled areas and areas close
to a nuclear power plantrsquos property line This provides for a more secure perimeter
around these facilities They need authority to challenge individuals acting in a suspicious
manner or conducting surveillance of nuclear facilities The OPG has informed me that
areas outside a nuclear facilityrsquos property line immediately adjacent to the controlled
area are still close enough to take advantage of the short distance to conduct intelligence
using high-powered surveillance equipment These nuclear power plants are not located
on isolated islands and are therefore vulnerable Both the Pickering Nuclear Generating
Station and the Darlington Nuclear Generating Station operate within major urban areas
being 30 km and 60 km east of downtown Toronto respectively I am advised that
previous events such as ldquoThe Toronto 18rdquo129 have shown that those intent on targeting
vital infrastructure such as power generating facilities often use reconnaissance and
intelligence gathering as precursor tactics
Recommendation
If the PWPA is to be repealed it is imperative that those who secure our nuclear and
power generating facilities be given the requisite specific legislative powers to do so
129 See for example ldquoLast 2 Toronto 18 accused found guiltyrdquo CBC News (23 June 2010) online cbcca lthttpwwwcbccanewscanadatorontostory20100623toronto-18-verdicthtmlgt
52
The source for these powers should be set out in the federal Nuclear Security
Regulations However if this is not a desired option the Government of Ontario must
consider specific legislation setting out the specific powers required to properly secure
these facilities and the specific location in which these powers can be exercised Such
legislation should not be passed without proper notice consultation and legislative
debate
53
SECTION 6 CONCLUSION
The PWPA was enacted in 1939 to support the war effort At the time the protection of
Ontariorsquos hydroelectric facilities from sabotage was of particular concern Since then the
PWPA has been used to provide the legal foundation for the powers exercised by the
police in providing court security and even more recently by the OPG in securing
nuclear power facilities In June 2010 the PWPA was used to provide powers to secure
intergovernmental conferences The vagueness of the PWPA permits it to be used in
situations when it is arguably not necessary and potentially abusive In my view the
PWPA has been used for purposes beyond its original intent
The time for the PWPA seems to have passed If the Government of Ontario enacts as I
have suggested specific legislation to provide for courthouse security and power
generating infrastructure security it would appear that there is no longer a need for the
PWPA I am also mindful of the existence of counter-terrorism and emergencies
legislation to deal with these situations as they arise
ldquoIn determining the boundaries of police powers caution is required to ensure the proper
balance between preventing excessive intrusions on an individualrsquos liberty and privacy
and enabling the police to do what is reasonably necessary to perform their duties in
protecting the publicrdquo130 The overly broad and vague language of the PWPA does not
strike this required balance with individual rights and freedoms
The late Justice Jackson of the United States Supreme Court stated that every
emergency power once conferred ldquolies about like a loaded weapon ready for the hand of
130 R v Clayton [2007] 2 SCR 725 at 742
54
any authority that can bring forward a plausible claim of an urgent needrdquo131 The need to
protect the public must be balanced with the requirement to preserve fundamental rights
and freedoms
Yet at the same time ldquoCanadians are entitled to demand the best public order policing
possible from their governmentrdquo132 There is no question that we live in a different world
post 911 We live in difficult times with constant threats both domestically and from
abroad The police clearly need to be given adequate powers to carry out their duties
The police use their expertise on a daily basis to assess the powers they require In
instances when they take action that exceeds their powers their actions are examined by
various mandated bodies This process I believe results in the proper balance between
police powers and individual rights and freedoms Therefore any legislation that purports
to grant special police powers must be specific and direct and developed in consultation
with stakeholders and tested through thorough debate in our transparent democratic
system
131 Korematsu v United States 323 US 214 (1944)132 Supra note 26 p 8
55
The source for these powers should be set out in the federal Nuclear Security
Regulations However if this is not a desired option the Government of Ontario must
consider specific legislation setting out the specific powers required to properly secure
these facilities and the specific location in which these powers can be exercised Such
legislation should not be passed without proper notice consultation and legislative
debate
53
SECTION 6 CONCLUSION
The PWPA was enacted in 1939 to support the war effort At the time the protection of
Ontariorsquos hydroelectric facilities from sabotage was of particular concern Since then the
PWPA has been used to provide the legal foundation for the powers exercised by the
police in providing court security and even more recently by the OPG in securing
nuclear power facilities In June 2010 the PWPA was used to provide powers to secure
intergovernmental conferences The vagueness of the PWPA permits it to be used in
situations when it is arguably not necessary and potentially abusive In my view the
PWPA has been used for purposes beyond its original intent
The time for the PWPA seems to have passed If the Government of Ontario enacts as I
have suggested specific legislation to provide for courthouse security and power
generating infrastructure security it would appear that there is no longer a need for the
PWPA I am also mindful of the existence of counter-terrorism and emergencies
legislation to deal with these situations as they arise
ldquoIn determining the boundaries of police powers caution is required to ensure the proper
balance between preventing excessive intrusions on an individualrsquos liberty and privacy
and enabling the police to do what is reasonably necessary to perform their duties in
protecting the publicrdquo130 The overly broad and vague language of the PWPA does not
strike this required balance with individual rights and freedoms
The late Justice Jackson of the United States Supreme Court stated that every
emergency power once conferred ldquolies about like a loaded weapon ready for the hand of
130 R v Clayton [2007] 2 SCR 725 at 742
54
any authority that can bring forward a plausible claim of an urgent needrdquo131 The need to
protect the public must be balanced with the requirement to preserve fundamental rights
and freedoms
Yet at the same time ldquoCanadians are entitled to demand the best public order policing
possible from their governmentrdquo132 There is no question that we live in a different world
post 911 We live in difficult times with constant threats both domestically and from
abroad The police clearly need to be given adequate powers to carry out their duties
The police use their expertise on a daily basis to assess the powers they require In
instances when they take action that exceeds their powers their actions are examined by
various mandated bodies This process I believe results in the proper balance between
police powers and individual rights and freedoms Therefore any legislation that purports
to grant special police powers must be specific and direct and developed in consultation
with stakeholders and tested through thorough debate in our transparent democratic
system
131 Korematsu v United States 323 US 214 (1944)132 Supra note 26 p 8
55
SECTION 6 CONCLUSION
The PWPA was enacted in 1939 to support the war effort At the time the protection of
Ontariorsquos hydroelectric facilities from sabotage was of particular concern Since then the
PWPA has been used to provide the legal foundation for the powers exercised by the
police in providing court security and even more recently by the OPG in securing
nuclear power facilities In June 2010 the PWPA was used to provide powers to secure
intergovernmental conferences The vagueness of the PWPA permits it to be used in
situations when it is arguably not necessary and potentially abusive In my view the
PWPA has been used for purposes beyond its original intent
The time for the PWPA seems to have passed If the Government of Ontario enacts as I
have suggested specific legislation to provide for courthouse security and power
generating infrastructure security it would appear that there is no longer a need for the
PWPA I am also mindful of the existence of counter-terrorism and emergencies
legislation to deal with these situations as they arise
ldquoIn determining the boundaries of police powers caution is required to ensure the proper
balance between preventing excessive intrusions on an individualrsquos liberty and privacy
and enabling the police to do what is reasonably necessary to perform their duties in
protecting the publicrdquo130 The overly broad and vague language of the PWPA does not
strike this required balance with individual rights and freedoms
The late Justice Jackson of the United States Supreme Court stated that every
emergency power once conferred ldquolies about like a loaded weapon ready for the hand of
130 R v Clayton [2007] 2 SCR 725 at 742
54
any authority that can bring forward a plausible claim of an urgent needrdquo131 The need to
protect the public must be balanced with the requirement to preserve fundamental rights
and freedoms
Yet at the same time ldquoCanadians are entitled to demand the best public order policing
possible from their governmentrdquo132 There is no question that we live in a different world
post 911 We live in difficult times with constant threats both domestically and from
abroad The police clearly need to be given adequate powers to carry out their duties
The police use their expertise on a daily basis to assess the powers they require In
instances when they take action that exceeds their powers their actions are examined by
various mandated bodies This process I believe results in the proper balance between
police powers and individual rights and freedoms Therefore any legislation that purports
to grant special police powers must be specific and direct and developed in consultation
with stakeholders and tested through thorough debate in our transparent democratic
system
131 Korematsu v United States 323 US 214 (1944)132 Supra note 26 p 8
55
any authority that can bring forward a plausible claim of an urgent needrdquo131 The need to
protect the public must be balanced with the requirement to preserve fundamental rights
and freedoms
Yet at the same time ldquoCanadians are entitled to demand the best public order policing
possible from their governmentrdquo132 There is no question that we live in a different world
post 911 We live in difficult times with constant threats both domestically and from
abroad The police clearly need to be given adequate powers to carry out their duties
The police use their expertise on a daily basis to assess the powers they require In
instances when they take action that exceeds their powers their actions are examined by
various mandated bodies This process I believe results in the proper balance between
police powers and individual rights and freedoms Therefore any legislation that purports
to grant special police powers must be specific and direct and developed in consultation
with stakeholders and tested through thorough debate in our transparent democratic
system
131 Korematsu v United States 323 US 214 (1944)132 Supra note 26 p 8
55